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Wednesday, May 27, 2020

Scholarship vs. Judging/Lawyering

Part of the reason legal scholars fail to clearly distinguish descriptive and normative claims is that they focus more on the “legal” part of their title than the “scholar” part. Almost all legal scholars trained as lawyers rather than scholars, and they fall back on approaches better suited to the profession they trained for. Nevertheless, scholars must recognize the descriptive-normative distinction if they hope to make clear, theoretically-sound arguments. Arguments that are neither clear nor theoretically sound have limited practical value no matter how well attuned they are to real-world legal issues.

There are two big reasons why legal scholars mush their descriptive and normative claims together. First, scholars mush together their descriptive and normative claims because they see judges and lawyers do it all the time. Based on their legal training, scholars think that claims about what the law is often sound more persuasive than claims about what the law ought to be, and they seek the same rhetorical effect that judges and lawyers seek. Law professors mistakenly believe that scholarly discussions of law are similar to discussions of law in court. They fail to recognize that the job of a scholar is very different than the job of a judge or a lawyer; scholars have more demanding requirements of clarity, transparency, and rigor. Lawyers, by contrast, are sometimes professionally obligated to be insincere, and many judges, no doubt, are insincere, writing as though the law is perfectly clear even when it was not prior to the judge’s opinion. Surely some judges take their opinions to be sincere. But I hope judges are frequently insincere when they make confident assertions about legitimately disputed issues because the alternative is that they are simply overconfident in their abilities and sorely unable to recognize genuine indeterminacy. As educators, we do too little to make the distinction between scholarship and legal advocacy clear to law students, so those that become, say, lawyers, judicial clerks, and eventually legal scholars haven’t been trained to make the appropriate distinction or to recognize its importance. (Re'em Segev and I previewed some of these matters in the comments to Monday's post.)

Second, it’s very difficult to combine the weight of law-related moral considerations with the weight of moral considerations unrelated to law. So legal scholars throw their hands up and speak about law and morality as though there’s no difference. Though the task is surely difficult, the weight of different kinds of considerations can be at least roughly combined. Legal scholars should rise to the challenge of addressing such tasks rather than simply ignoring them.

The three schools with the most hires are, obviously, Yale, Harvard, and NYU. Looking more closely at those three schools over time:

As always, I am happy to work with anyone who would be interested in pursuing these or other questions further. Or people should of course feel free to use the data themselves (with the caveat that the numbers from the public spreadsheets may not match the numbers above, as some people have asked not to be posted on the spreadsheets but have given me permission to include them in the data).

This post is freely available under the Creative Commons Attribution-Share Alike 4.0 license, cited as Sarah Lawsky, Entry Level Hiring - JD School Total and Over Time, https://prawfsblawg.blogs.com/prawfsblawg/2020/05/entry-level-hiring-jd-school-total-and-over-time.html.

Tuesday, May 26, 2020

The Importance of the Fact-Value Distinction: A Reply to Kleinfeld

In my prior post, I argued that scholars should better distinguish the descriptive and normative parts of their arguments. But what if there’s really no good distinction between the two? More broadly, what if there’s no such thing as moral normativity?

Joshua Kleinfeld takes such considerations to show that the fact-value distinction is not a sharp one. He bemoans “the rigidity with which contemporary academic legal culture invokes the fact-value distinction”[1] and believes it quite fine to offer arguments that blend the descriptive and the normative. It’s not the case, he argues, that “every well-formed claim in the world could be set straightforwardly on one side of the ledger or the other like so many zeroes and ones.”[2] Indeed, he finds it ironic that law professors insist on a fact-value distinction but then regularly fail to honor it:

Is the corrective justice view of tort law, which holds that the doctrinal structure of tort law reflects ideals of corrective justice, normative or descriptive? Well, both; it is a sort of idealizing interpretation. What about the economic view that regards tort law as an instrument for efficient resource allocation? Again, the view is at once normative and descriptive: it is an interpretation of the existing legal system with critical force to the extent the system diverges from it. What about a view of contract law as the legal effectuation of promise-keeping values? The interpenetration of normative and descriptive ideas in that view is impossible to unravel — either in principle (because the two categories are not truly separate) or in practice (because the two categories get so entwined in the course of argument) or both. When a lawyer argues that the Establishment Clause prohibits school-sponsored prayer in public schools, is that a descriptive claim about what the Constitution does mean or a normative one about what it should mean? What about when a lawyer argues that a contract’s reference to “reasonable efforts” means whatever efforts are standard in the industry rather than all cost-justified efforts? Entanglement is a normal feature of human understanding in general, but it is, if anything, particularly pronounced in law. Law is interpretive, and interpretive enterprises exhibit entanglement in extreme form.[3]

I have three responses. First, even if there are borderline claims that blur facts and values, they do not defeat the distinction altogether. Many statements appear to fall quite squarely on one side or the other. Many others, even if initially ambiguous, can be clarified or broken down into easily distinguished components. The person who reports seeing a parent hit a child “cruelly” can likely describe what she observed in factual terms (for example, the parent hit the child three times across the face) and separately describe her moral evaluation (for example, it grossly exceeded the bounds of appropriate parental discipline). Indeed, when confronted by sometimes vague distinctions, it becomes especially important to be clear and precise about their contours.

Monday, May 25, 2020

Legal Scholarmush

There is a vast conceptual difference between descriptive and normative claims about the law. Under a common view, descriptive claims about what the law is rely on legal sources such as cases, statutes, and regulations, and perhaps reasonable predictions about how judges and others will behave in the future. By contrast, normative claims about what we morally ought to do depend on more than just descriptive facts. They depend on values that cannot be deduced merely by empirical investigation. As a descriptive matter, a jurisdiction may criminalize insider trading, but that tells us little, if anything, about whether the conduct ought to be criminalized. Many laws have been morally atrocious, including statutes and decisions institutionalizing slavery, limiting women’s property rights, prohibiting interracial marriage, and so on.

Yet the difference between the descriptive and the normative is frequently blurred or ignored by legal scholars. One scholar might say that a judge “should” deem the defendant’s conduct insider trading, while another might say that a judge “should not.” Though their views appear oppositional, they may agree on substance if one refers to a legal “should” (meant as an expression of the positive state of the law) and the other to a moral “should” (meant to be independent of the positive state of the law). Conversely, scholars may express agreement but actually hold antithetical views. We are left not with productive scholarly exchange but with scholarmush—a tangled combination of claims rooted partly in law and partly in morality that are partly dependent on facts and partly dependent on values. It’s time to untangle the scholarmush.

To see why legal scholars should be explicit about the normativity of their claims, notice some of the many ways two scholars who mush together their views of law and morality might inadvertently talk past each other: (1) they might have a factual disagreement about sources of law (for example, there might be precedents that one scholar is considering but not the other); (2) they might agree about the relevant sources of law but disagree about how judges are likely to interpret them; and (3) they might agree about both the pertinent sources of law and how judges are likely to interpret them but disagree about the best way to proceed from an overall moral perspective (because they disagree about facts, values, or both).

Saturday, May 23, 2020

Are Hong Kong Pro-Democracy Activists Endangering the Basic Law They Want to Defend? How Moral Conviction Destroys Federal Compromise

The news is now filled with denunciations of the People’s Republic of China (PRC) for failing adequately to respect the "high degree of autonomy" ("高度自治权") guaranteed to the Hong Kong Special Autonomous Republic (HKSAR) by Article 12 of the Hong Kong's Basic Law（BL), the Chinese statute under which HKSAR is governed. The specific occasion for these denunciations is the proposal by the National People's Congress to enact a new National Security Law ("NSL") that would allow the PRC to crack down on anti-state subversion (An English translation from Jeremy Daum is available here). Some but not all of ̶T̶these denunciations ̶a̶l̶l̶ share a larger narrative: The PRC has been constantly plotting for the last two decades to undermine HKSAR’s independence, unprovoked by any behavior by Hong Kongers, and only the vigilance of Hong Kong protestors has deterred such nefarious and illegal schemes. (For examples of this narrative, see this New York Times’ story and this Vox Explainer). Lewis Yau Yiu-man has provided a succinct statement of this narrative in an op-ed in yesterday’s New York Times: “‘One country, two systems’ was a ploy from the outset, a tactic for China to buy time, the better to absorb Hong Kong sooner or later,” he writes: “Preferably sooner, it seems.”

This narrative — PRC plotting to undermine the Basic Law, Hong Kongers’ vigilance in preserving it — is, I think confused and dangerous. If the PRC really wanted to “absorb Hong Kong,” then they sure are taking their good sweet time. Hong Kong has consistently been rated one of the top ten freest societies in the world by the Cato Institute, and even Freedom House, which gives Hong Kong only a partly free rating of 55, acknowledges that, in Hong Kong, “individuals [are] free to express their personal views on political or other sensitive topics without fear of surveillance or retribution.” Evidence that the Chinese Communists are not very energetic about destroying Hong Kong’s civil liberties is contained within Mr. Lau’s own op-ed, which he published while living in Hong Kong: Try publishing that sort of thing while living in Shanghai, and see how long you stay out of “residential surveillance.” If the PRC wanted to squelch this enclave of civil liberty, they could have rolled in the tanks in 1989 or 2003 or yesterday: They have no need of “ploys” where they have unquestioned power, given that they have shown a willingness to use power again and again, international public opinion and international law be damned.

The more accurate account of CCP leaders’ motives, therefore, is probably that (1) the PRC leadership would prefer to preserve Hong Kong as a liberal enclave, albeit not as unconstrained as critics like Mr. Lau would prefer but (2) Communist bigs and Hong Kongers simply have different conceptions of the regime that the Basic Law created, because the Basic Law is extraordinarily ambiguous. As I will argue after the jump, the PRC leaders could reasonably interpret the Basic Law as guaranteeing something like a “Finlandized” Hong Kong. By "Finlandization," I refer to the once-familiar and informal arrangement between Finland and the Soviet Union under which the Soviet Union would not interfere with the Finns' internal affairs so long as the Finns did not allow their territory to be used for denunciations of or organizing against the Soviet Union. The policy involved a significant amount of informal self-censorship by the Finns, not codified in any law but tacitly observed by book publishers, film-makers, and newspapers to avoid negative commentary on Soviet politics. It was not perfect freedom, but, compared to the fate suffered by, say, Czechoslovakia, Poland, or Hungary, “Finlandization” was, as Melvin Lasky put it in 1979, "not the worst fate." By contrast, Hong Kongers regard the Basic Law as guaranteeing them essentially the same raucously uncensored politics as, say, London’s or New York City’s.

The conflict between the PRC and the Hong Kongers is, in short, a reasonable disagreement about what exactly the Basic Law guarantees. How could the Basic Law produce so much misunderstanding? After the jump, I will provide some background on the Basic Law’s roots in British colonialism and Communist paranoia. Given that background and the ambiguous language it produced, PRC leaders could reasonably believe that Hong Kong pro-democracy activists have pressured the HKSAR into violating the Basic Law’s “Finlandized” letter and spirit by refusing to enact any anti-subversion law for seventeen years, despite their duty to do so under BL Article 23. The PRC’s responses to these perceived violations have provoked pro-democracy activists into escalating their protests against PRC’s alleged nefarious plot, which inspires yet more paranoid responses from the PRC, in a vicious cycle that endangers HKSAR’s fragile enclave of liberalism by provoking the Communists into saving face by marching the People’s Liberation Army into the Admiralty.

Hong Kong's predicament suggests a more general hypothesis to me: Federal bargains intended to promote jointly maximizing cooperation between constituent units of a federal system can end up exacerbating that conflict when the terms of the bargain are ambiguous and the value conflicts between those constituent units are deep.

He concludes with an important point: Most students' will demand face-to-face classes, because most students hated Zoom. But most may not realize that they are demanding something that cannot be delivered two months from now and will look and feel different than what they imagine. Schools' most important task right now may be to communicate with students and lay out the realities (perhaps assigning Josh's post)--both to set student expectations and perhaps influence student demand.

Update:Ilya Somin offers further and different suggestions, including moving small classes online so larger classes can be spread into several rooms and protecting vulnerable teachers by having them teach to the students gathered (at a distance) in the classroom.

Friday, May 22, 2020

The First Closely Divided Vote in the Supreme Court

Today we are accustomed to 5-4 votes in the Supreme Court. Of course, during the Marshall Court most of the opinions were unanimous. (Indeed, there were a couple of years where every opinion was unanimous.)

One thing that makes Ogden v. Saunders unique is that it was the first case on a constitutional question where the Court made its decision by a one-vote majority. The vote was 4-3, as there were only 7 Justices serving at that time. (Granted, they may have voted 4-3 in conference in earlier cases and just announced a "unanimous" decision, but we have no way of knowing.) This must have come as quite a shock to whoever was a Court-watcher in 1827, especially since the Chief Justice was in dissent on the constitutional point.

Next time I hope to share some new information that I've discovered about Ogden.

Concluding the Legal Discontinuities Online Symposium

With thanks to all participants and commentators (and Howard and the folks at Prawfsblawg), we can now bring our two-week Legal Discontinuities Online Symposium to a close. If you've been busy with grading or pandemic issues or just life in general, you can find all the posts right here.

As readers will have noticed, issues about lumping/splitting, smoothness/bumpiness, aggregating/disaggregating, and winner-take-all-or-nothing come up throughout the law. While different contexts raise different details, we gain a lot by looking for the heart of the issues across a wide-range of legal doctrines--an exploration the legal academy has barely begun considering its centrality to the law. I believe this symposium has advanced that exploration, and we do so even more in our collection of papers that will be published under generous open access terms (roughly in January) by the fantastic editors at Theoretical Inquiries in Law, affiliated with the Cegla Center for Interdisciplinary Research of the Law at the Buchmann Faculty of Law, Tel Aviv University. Thanks again!

Thursday, May 21, 2020

ODR & COVID-19: Guest post from Prof. Stacy Butler (Arizona Law)

[Editorial Note: Stacy B. runs a remarkable legal innovation program at her law school. You can check it out here]

What Covid-19 Might Mean for Online Dispute Resolution

When the Covid-19 outbreak hit, the Innovation for Justice Program at the University of Arizona James E. Rogers College of Law and Pew Charitable Trusts were in the midst of evaluating the usability of the Utah State Court’s online dispute resolution platform for defendants in debt collection cases. Like the rest of the world, we’ve been forced into a full-time remote existence. As we work to pivot our research, we are discovering new challenges and opportunities related to online dispute resolution.

A year ago, before anyone was thinking about the possibility of a global pandemic, approximately 50 county and statewide court systems in the United States were experimenting with online dispute resolution (ODR).[1] Now, in the midst of Covid-19-imposed social distancing protocols, courts are rapidly moving to a “remote court model,” leaning on video- and teleconferences and on-the-briefs decision-making to keep courts in operation, while a backlog of cases builds.[2] Covid-19 is going to force a permanent shift in court processes. As Colin Rule, vice president of Online Dispute Resolution at Tyler Technologies, Inc. writes: “The courts were already struggling with existing caseloads before the crisis, and now they will be burdened with this additional backlog once processes resume. Combined with the huge number of newly laid-off citizens, the caseload in the courts may swell to unprecedented levels, and citizens will not be able to wait years for issues to be resolved.”[3] Increased adoption of online dispute resolution – which promises a court-annexed, public-facing, digital space to resolve disputes quickly – seems imminent and inevitable.[4]

BUT … there are logistical challenges we haven’t prepared for. Courts that have adopted ODR have leveraged in-person contacts to make the transition. In New Mexico, for example, when courts began piloting ODR for debt collection cases, the state judiciary’s communication officer visited local libraries to introduce the program to librarians and leave brochures for library patrons.[5] Those in-person opportunities are no longer available. Adoption, testing and customization of ODR also takes time – time that now seems in short supply as case backlogs grow. Some ODR programs rely on volunteer facilitators/mediators, a service model that may not scale well. And ODR is nascent in the U.S.: there aren’t many well-developed, tried and tested choices for courts. In fact, our project is the first to evaluate the usability of a U.S.-based ODR platform. We are testing questions such as: are information and explanations about ODR and its justification available in a way that all users can find, understand, and act on? Do changes within the ODR platform have an impact on users’ decisions? What impact does changing the user interface design or sequencing of information and features within the ODR platform have on the pathways or procedures that users select and pursue? For now, those are unanswered questions, and a mass onboarding of ODR in courts across the U.S. without answers to those questions is risky.

Prior to Covid-19, Utah was piloting the only home-grown ODR platform in the country, making it available for small claims debt collection cases in three counties. Initial user engagement in Utah’s ODR platform was impressive: of the first 2,000 cases tested in the platform, only 28 users opted out.[6] But our Utah stakeholders recently walked us through the practical reality of how ODR is operating now. Utah’s ODR platform requires the plaintiff to file electronically, and then personally serve the defendant with a summons and affidavit that directs the defendant to the ODR platform. With shelter-in-place restrictions, personal service is not happening. Small claims cases continue to be filed, but not served. Without service, no new cases are moving into the ODR space. Utah is preparing now for the possibility that it may need to automatically extend service deadlines for the cases in this particular bottleneck.

Even if cases are served, there is a real question about whether defendants will respond and log in to ODR. By the time social distancing protocols permit in-person service, the defendant being handed the summons will likely have been unemployed and sequestered for several months, possibly with health issues, while new debts – medical debt, consumer debt, back rent and more – have piled up. ODR is intended to help parties negotiate a settlement, generally one that involves the defendant paying some amount. For defendants facing insurmountable debt post-Covid, where is the incentive to engage?

If ODR fails in the face of these Covid-19-related challenges, the new status quo could be worse than the old. Federal Reserve statistics show that a large share of Americans cannot come up with $400 to deal with an emergency, which means many households are poorly positioned to deal with the financial impact of Covid-19.[7] Absent more aggressive debt postponement/forgiveness policies, debt collection filings are going to increase this year, and defendant responses to debt collection actions are going to decrease. Pre-Covid, a majority of debt collection cases filed ended in default judgments against debtors.[8] Post-Covid, ODR may just grease the default judgment wheel. ODR makes it even easier for plaintiffs to file debt collection actions and obtain default judgments: no physical court appearance required. As default judgment rates increase in the year ahead, we should be measuring whether jurisdictions with ODR in place have higher rates of default than courts without it.

ODR in the time of Covid-19 also presents a serious equity risk: new ODR spaces may develop and launch without the involvement of those who need access to justice the most during this pandemic. In 2017, the National Center for State Courts recommended that, “to glean the greatest benefit, ODR should be co-designed and rigorously user-tested by the public it seeks to serve. Courts must involve the public as key stakeholder participants.”[9] Three years later, we are conducting the first observation-based usability test of an ODR platform in the U.S. to encourage this type of participatory co-design between courts and communities. Before the outbreak, that testing involved in-person engagement with potential ODR users in person, watching them navigate the platform from a smartphone and collecting data about speed and ease of use and user satisfaction. It also included participatory design workshops with the low-income community, engaging them in identifying problem areas within the ODR platform and listening to their ideas about how ODR could better work for them. Now, while sheltering in place, we are working on creative ways to complete our research. There is no substitute for face-to-face engagement with people who need access to our civil legal system. That real-time human feedback provides powerful and meaningful insight into how under-represented populations feel about their civil legal system, what type of access they need, and what features encourage their engagement. Courts were not particularly inclined to apply this type of user-centric design before Covid, and the resource challenges associated with the pandemic diminish the odds that under-represented populations will have a voice in the design of next-gen ODR. And once those platforms go live, only those with the economic and technological wherewithal to participate in the new online forum will be providing usage feedback to courts.

These risks can be mitigated if courts resist Covid-19 urgency long enough to create space and time to be thoughtful about the move to ODR:

Map your processes and bottlenecks: Court closures and case stays vary state by state. Assessment of ODR’s usefulness should begin by identifying whether your court is experiencing a pile-up of cases that cannot be filed, are filed but not served, or are served but not being heard. When barriers lift, will ODR help with those problem areas? Or does your court need to think about ODR for future, post-Covid-19 cases?

What do you need ODR to do? ODR works well for high-volume, low-complexity, low-stakes cases. What backlogs or anticipated incoming waves of court filings could be best addressed through ODR implementation?

Assess your ODR options: There are only a handful of private-market ODR vendors. Understand the features each can offer, and their willingness to customize their platform to your court needs. If they cannot offer what you need, consider following in the footsteps of the Utah State Courts and build your own.

Where in the life of a case should ODR exist? Some ODR platforms are offered to litigants before they file, some are offered after filing. Some require users to opt-in, and some give users the chance to opt-out. All of those options need to be re-evaluated in light of Covid-19. If a court is experiencing a post-filing bottleneck, a pre-filing ODR space may divert new cases and ease pressure on court systems. The challenge will be educating court users during a global pandemic that pre-filing ODR is available. ODR systems that require an opt-out are now going to require increased attention to the procedural fairness of service of process and user onboarding processes.

Don’t let existing court rules and procedures stand in the way: ODR presents an opportunity to improve court processes for the people who need them. Now is the time to question whether rules and procedures created in a low-tech era need to be adapted for the new, virtual world.

Involve your users: The best time to receive input from the potential users of your ODR system is before you launch it. Once the platform is live, changes will be much harder. IAALS offers a simple guide for engaging users in court services here. The Nielson Norman Group, world leaders in research-based user experience, have lots of advice about remote user engagement here. Realistically, courts making an effort to include users in ODR implementation will have limited time, resources, and user-testing experience. For those courts, any user engagement is better than none, so focus on these four questions:

For the case type you are considering, who are your users (plaintiffs and defendants)?

What do you want to know from those users? Think about what your ODR system should accomplish: procedural fairness, dispute resolution, user satisfaction. What needs to work well in your ODR platform for those goals to be met?

If social distancing is still occurring, how can you reach your users? Some will have technology access and could be surveyed or engaged in early prototype testing online. But keep those without technology access in mind – can you reach them by phone? Or can you talk to an organization that can advocate for the interests of that population?

When in doubt, use inclusive design. Microsoft’s inclusive design theory posits that designing for those with permanent disabilities results in designs that benefit people universally. If your court only has limited space and time to engage users in your ODR design, engage your most vulnerable users first.

[4] If China is an indicator of next steps for U.S. courts, as it has been an indicator of most Covid-19-related trends in the U.S., online courts are coming. Seehttp://www.xinhuanet.com/english/2020-02/18/c_138795315.htm (internet courts in Hangzhou, Beijing and Guangzhou had accepted close to 120,000 cases as of Oct. 31, 2019).

Optimal Categorization

Fennel’s excellent paper deals with the problem of “optimal categorization”. Using one of her examples- insurance and the problem of adverse selection- the question is whether in order to combat adverse selection insurers should “split” – divide the pool into more homogeneous and smaller risk pools, or “lump”- sell insurance on a group-based basis.

There are two features that create the problem of adverse selection: the asymmetric information between the insurers and insureds and the strategic behavior by insureds (selecting in and out of the pool). These are, as we have learned from Ronald Coase, two types of transaction cost. Put differently, categorization (splitting or lumping) is a solution to the general problem of transaction costs.

Ogden v. Saunders and Originalism

I particularly like how Justice Washington began his constitutional analysis in Ogden:

I come now to the consideration of the question, which, for the first time, has been directly brought before this Court for judgment. I approach it with more than ordinary sensibility, not only on account of its importance, which must be acknowledged by all, but of its intrinsic difficulty, which every step I have taken in arriving at a conclusion with which my judgment could in any way be satisfied, has convinced me attends it. I have examined both sides of this great question with the most sedulous care, and the most anxious desire to discover which of them, when adopted, would be most likely to fulfill the intentions of those who framed the constitution of the United States. I am far from asserting that my labors have resulted in entire success. They have led me to the only conclusion by which I can stand with any degree of confidence; and yet, I should be disingenuous were I to declare, from this place, that I embrace it without hesitation, and without a doubt of its correctness. The most that candor will permit me to say upon the subject is, that I see, or think I see, my way more clear on the side which my judgment leads me to adopt, than on the other, and it must remain for others to decide whether the guide I have chosen has been a safe one or not.

One of my objections to the practice of originalism is the degree of certainty expressed by many who apply that approach. They know for certain what the original understanding more often than can possibly be true. Bushrod's reasoning was originalist in a way (as I'll explain in later posts) but with a far more modest and realistic view of what we can know. And remember--he was a member of the Virginia ratifying convention in 1788 and close to George Washington. If anyone could have claimed confidence about what the intent of the framers was, it was Washington. But he did not. Food for thought.

Wednesday, May 20, 2020

Ogden v. Saunders as the Anti-Lochner

A centerpiece of my Bushrod Washington biography is Ogden v. Saunders, an 1827 Supreme Court case which concluded that states could enact bankruptcy laws that applied prospectively. Ogden is fascinating for many reasons, one of which being that Washington wrote the lead opinion for the majority while Chief Justice Marshall (joined by Justice Story) dissented. We also have Washington's notes on Ogden and get to see him argue with himself (more on that in another post).

Ogden raised two issues. First, was the power to enact bankruptcy laws vested exclusively in Congress by the Constitution? Second, would a state bankruptcy law violate the Contracts Clause? [Set aside the first issue for now.] Washington reasoned that a prospective state bankruptcy law did not violate the Contracts Clause because state law was the backdrop against which contracts were made. He rejected the idea that natural law (or what he called the moral obligation to honor a promise) was the benchmark. He then ran through a series of examples of state laws that regulated contracts and pointed out that many of them would be invalid under Marshall's dissenting view (though Marshall denied that this was the case).

In a sense, Washington's opinion was the forerunner of Holmes' dissents in the liberty of contract cases. Holmes also like to point out that state laws regulated contracts in all sorts of ways that made the notion of a fundamental right on that subject difficult to understand. Indeed, there are some similarities between what Holmes said and Washington's Ogden opinion that I wonder if there was some unconscious copying going on--Holmes did not cite Ogden--but it's also possible that they reached the same conclusion independently.

One last point for this post--Bushrod was very much a legal positivist. He showed virtually no interest in natural law, except for one circuit opinion in which he threw in some dicta on the subject moving deciding the case on other grounds. This was good in cases such as Ogden or Golden v. Prince, in which he rejected what later became Justice Story's theory of federal common law in Swift v. Tyson. But this was not so good for slavery, which could be upheld only on a positive law basis.

From Severed Spots to Category Cliffs (by Lee Anne Fennell)

The New-York-based MSCHF recently acquired L-Isoleucine T-Butyl Ester, one of Damien Hirst’s spotted paintings, and sliced it up into 88 single-spot servings that sold for $480 a pop—more, in total, than the $30,485 purchase price of the painting. They then auctioned off the hole-filled remainder for $261,400. The whole, in this case, was apparently worth less than the sum of its parts (counting the added value of the stunt itself). While MSCHF’s “Severed Spots” project is a very literal example of how slicing up an asset can increase its value, it speaks to an issue that is ubiquitous in law, policy, and everyday life: the lumpy, discontinuous, all-or-nothing nature of many things in the world. Efforts to address such (apparent) indivisibilities underpin many market innovations and are also central to problem-solving in multiple spheres, from public goods to personal goals.

I explored the significance of configuration—whether dividing things up or piecing them together—in my recent book, Slices and Lumps: Division and Aggregation in Law and Life (which you can sample here). But the topic is huge, and the book could only scratch the surface of the many implications for law—an assortment of which received thoughtful attention in a University of Chicago Law Review Onlinebook symposium (and here's my introductory essay). The daily news also contains constant reminders of how much lumpiness—and responses to it—matter to everyday life. Severed spots are an entertaining example, but more serious ones abound, from lumpy work arrangements that exacerbate gendered patterns, to the seemingly lumpy choices that public officials now face about whether—and what—to reopen.

My new paper, Sizing Up Categories, delves into another aspect of lumpiness: the all-or-nothing cliffs that categories generate. Categories break the world into cognizable chunks to simplify the informational environment, flattening within-category differences and heightening between-category distinctions. Because categorization often carries high stakes, it predictably generates strategic jockeying around inclusion and exclusion. These maneuvers can degrade or scramble categories’ informational signals, or set in motion cascades like adverse selection that can unravel markets.

Live Online Programs in Con Law & Beyond

The ever energetic Richard Albert (Texas) has organized several upcoming virtual meetings and all are invited - follow the links below.

Oh, and if you happen to speak Hebrew - here is an open and free to all event that I doing called From the Doll Wars to a Covid-19 Cure: How Law Helps (and sometimes hinders) Innovation. I will be interviewed by Barak Yagour, Director of R&D at Facebook. Join if you can this Friday - sign up here.

Tuesday, May 19, 2020

Continuity in Morality and Law (by Re'em Segev)

Adam Kolber invites us to consider the following argument: (1) morality is usually continuous in the following sense: a gradual change in one morally significant factor triggers a gradual change in another; (2) the law should usually track morality; (3) therefore, the law should often be continuous (see, for example, here). This argument is motivated, for example, by claims such as these regarding the overall moral status of actions and agents: if a person who employs reasonable force in self-defense should not be punished at all, a person who uses defensive force that is just slightly more than what is proportional should not suffer a serious punishment; and if no compensation is required for harm that is the result of driving in a way that is reasonable, a driver that caused similar harm while driving in a way that is just slightly unreasonable should not be required to pay millions. In this post, I defend two claims regarding the first premise of this argument: (1) this premise is incompatible with the common view; (2) this common view is implausible. Thus, Kolber's argument is safe in this regard – but it is based on a minority view. (These claims are based on this paper.)

The first premise is incompatible with the common view that there is an important difference between actions that are right (obligatory or at least permissible) and actions that are wrong – even if this difference is due to a small difference in terms of underlying factors such as the consequences of these actions. For example, the standard version of (maximizing) consequentialism holds that the action whose overall consequences are the best is obligatory, whereas an action whose overall consequences are just slightly less good is wrong. And standard deontological theories claim that this is the case sometimes (when deontological constraints and permissions do not apply or are defeated). The common view takes this stark distinction between right and wrong actions very seriously. One example is the influential objection that he standard consequentialism is overly demanding in its insistence that only the action whose consequences are the best is permissible and all other actions are wrong. The extensive debate regarding this question demonstrates that the difference between actions that are permissible and actions that are wrong is commonly considered to be very important. If this view is correct, what seems like a small difference in the moral status of the actions in the self-defense and accident cases is in fact a momentous one: the difference between justified and wrongful defense or between reasonable and unreasonable risk. If this view is correct, very different legal outcomes in these examples are indeed called for and the first premise of the continuity argument is false.

However, my second claim is that this common view is indefensible and that scalar accounts of morality are more plausible. Consider, for example, the difference between standard consequentialism and scalar consequentialism. Both ranks states of affairs from the best to the worse. They differ regarding the deontic implications of this evaluation. Standard consequentialism adds that the best action is obligatory and every other action – including a very close second best – is wrong, while scalar consequentialism does not classify actions as obligatory, permissible, or wrong. (Satisfying consequentialism is similar in this respect to maximizing consequentialism, since it too distinguishes between right and wrong actions –merely in a different way: those that are good enough and that those that are not.) It seems to me that the scalar view is more plausible: it reflects all the morally significant facts, and only these facts, by ranking actions from the best to the worse while noting the degree to which each action is better or worse than every alternative, and accordingly the force of reasons for and against every alternative action, compared to all other possible actions. In contrast, the standard distinction between right and wrong actions assigns weight to facts that are insignificant or too much weight to trivial differences. Consider, first, the distinction between the best action and actions that are very similar to it in terms of all the underlying moral factors. For example, while scalar consequentialism grades the best action as perfect (A+, or 100%) and the second best action (whose consequences are just slightly less good) as almost perfect (A, or 98%, for instance), the standard view describes the latter action as wrong (F!) – although it is almost perfect in terms of all of the underlying factors. At the other end of the spectrum, standard consequentialism classifies all actions that are not the best together – as wrong – although are often huge differences between them: the second best option may be almost perfect whereas the worse option may be awful. Indeed, the latter difference –between the second best action and the worse action – is typically much more significant than the former difference – between the best action and the second best action. Since there are typically numerous alternative actions, and there are substantial differences between many of them, the scalar version evaluates common actions – which are typically far from both the best and the worse options – much more accurately than the standard version. Consider, for example, how much money should a certain well-off person give each month to the (most deserving) poor. Assume that giving US$1000 would have the best consequences, that giving US$990 would have consequences that are almost as good, and that giving nothing would have consequences that are very bad. The standard view considers giving US$1000 as obligatory and giving both US$990 and nothing as wrong.

Cert denied in three qualified immunity cases

In a post about the Reuters stories on qualified immunity, I mentioned that SCOTUS had multiple cert petitions in the May 15 conference dealing with qualified immunity. Monday's Orders List included denials in three: Kelsay v. Ernst (police officer slams woman to the ground), Jessop v. City of Fresno (officers stole $ 225,000 in cash and rare coins while executing search warrant), and Clarkston v. White (retaliatory denial of charter-school application, where real issue was proper defendant rather than whether right was clearly establish). No noted dissents from any of the cases, even the truly egregious Jessop. Ten other petitions remain with the Court, including several that ask the Court to rethink the entire doctrine.

Line Drawing in the Dark (by Adam Kolber)

Suppose one hundred women line up by height, and you must decide exactly where along the line the women are “tall.” Aside from the familiar (sorites) problem of distinguishing between women very close in height, there is also a problem of meaning. You might very well ask: How tall? Tall for what purpose? To reach the top shelf of some particular closet? To play professional basketball? Absent information about the purpose of the cutoff and what it signifies, it is difficult to draw a meaningful line. When we draw lines across spectra with little information to guide us, I call the creation of such cutoffs “line drawing in the dark.”

Turning to law, many jurisdictions follow the Model Penal Code in recognizing a spectrum of recklessness that can make an instance of homicide either manslaughter or murder. At trials where a defendant’s conduct could plausibly constitute either manslaughter or murder, it will usually be the jury’s job to draw the line between the two. For example, jurors will be asked to decide whether a driver murdered a pedestrian by driving “recklessly under circumstances manifesting extreme indifference to the value of human life” or whether the driving did not manifest such extreme indifference such that the defendant should be convicted at most of manslaughter.

Of course, the line between these two kinds of homicide isn’t carved by nature. Holding all else constant, the appropriate amount of punishment seems to increase smoothly as a defendant’s mental state becomes increasingly reckless (or, if you prefer, as evidence of that recklessness increases). For example, one might gradually increase punishment to reflect greater culpability or need for deterrence. To decide between manslaughter and murder, we must draw a line at some point and call certain reckless homicides “manslaughter” and others “murder.”

Sunday, May 17, 2020

Online education on trial?

This op-ed describes a lawsuit against George Washington by the lawyer/parent of a GW student, alleging breach of contract because the claim that the school continues to deliver quality education regardless of formate is "demonstrably false."

When we went underground in March, there was some discussion of whether schools could succeed with a force majeure defense. The op-ed raised a different question for me: Will resolution of this claim require a court or jury to decide whether online education is comparable to in-person education and how comparable must it be? And will a court be willing (or willing to allow a jury) to resolve that policy question as a factual matter?

When the middle might be worse than the extreme

Although several months away, universities, including law schools, are trying to figure out how to conduct fall classes. This Inside Higher Ed piece from April offered fifteen scenarios. The favored approach seems to be a return to campus, but with social-distancing and other protocols and with accommodations for students and faculty with age, health, or other reasons for being unable to return to the workplace without a vaccine or herd immunity.*

[*] And assuming that the wave of reopenings in May and June does not produce spikes in cases in June and July that set us back by several months.

Which really means that most schools will be doing a hybrid. They will be mixing in-person, remote, and online classes. And in-person classes must have remote components. Professors who want to return to the live classroom will have to divide their sections (half the class live on Day One, the other half live on Day Two) and combine it with interactive technology--namely some kind of Zoom or similar hook-up--for the students who cannot be there. (Recording or live-streaming the regular live class is not a reasonable accommodation).

I have been thinking about how this will work and I am not sure it will. My in-person classes work because of a high level of engagement with the students in the room--a rapidly moving conversation, my pacing and moving around the room a lot, and working with and off stuff written on the dry-erase boards. I do not see how I can do that while being close enough to the computer to interact with those students, answer questions, see who is chatting or raising a hand, etc. People on Zoom cannot see the dry-erase board, so visuals would have to be on share screen in addition to the Board. In being close enough to the computer to engage the remote students, however, I fear I am going to lose meaningful interaction with the students in the room.

Given that, I think I might prefer to keep the entire class via Zoom. I believe I reached a point in March and April were I could run a Zoom class that was a reasonable approximation of an engaged law-school course that challenged students, engaged students, and taught students what they needed to know. It remains inferior to an in-person class. But it may be preferable to a hybrid that does a poor job for both sets of students.

Segall on Con Law "Where the Justices Just Make Up the Law"

In case you missed it a couple of months ago, Eric Segall concisely skewered Supreme Court constitutional law jurisprudence, offering "10 representative examples that show how judge-made constitutional law is little more than the aggregate of the Justices' value preferences or, on some occasions, the results of bargaining among the Justices to reach a five-vote result that makes little sense. I could provide 100 examples if space and the readers' patience allowed."

As I see it, lawyers must often pretend that the law makes sense and that decisions follow clearly and logically from precedent. Scholars, though, should be transparent about what follows from legal sources and what seems heavily influenced by policy or value judgments. Law professors should take on dual roles: teaching future lawyers how to effectively advocate inside a system that purports to be logical, rational, and built on existing legal sources while at the same time making clear how the games lawyers play do not necessarily reflect unbiased mechanical application of the law. My own experience from law school about twenty years ago is that professors should have been more transparent about these two sides of the law, not just in constitutional law but in all law school classes. Perhaps that explains my own limited patience for judicial bullshit.

Saturday, May 16, 2020

A Skeptical Comment on the Wisconsin Diploma Privilege

Anent my previous post on using the Wisconsin diploma privilege to "reflect on what we do and what we ought to do" in legal education, I heard from Jason Yackee, who teaches at the University of Wisconsin's law school. My post featured a piece quoting Wisconsin lawyers and regulators discussing the privilege--a useful source of information to those of us who have discussed or invoked the privilege without first-hand experience. More information is better, and Prof. Yackee offers his own experience-based judgment, which is more skeptical than that of the people I quoted earlier. With his permission and my thanks, I offer his response below, with some comments following.

The Covid-19 pandemic has called into question the ability of states to safely administer in-person examinations for admittance to the bar. One potential solution, perhaps only temporary in nature, is to substitute some version of a “diploma privilege”, through which students who have graduated from certain law schools are granted permission to practice without taking a traditional bar exam. Recent posts on Prawfsblawg and on Paul Caron’s Taxprof Blog have suggested that Wisconsin’s long-standing diploma privilege regime might serve as a model. Wisconsin is, famously, the only state to allow graduates from in-state law schools (of which there are only two, at UW-Madison and Marquette University) to bypass the Wisconsin bar exam. That exam consists of the Multistate Bar Exam, which is developed by an organization based—note the irony—in Madison, Wisconsin. Graduates of all other law schools in the union, from Yale on down to Thomas Jefferson, must take and pass the test. This system has very occasionally and never successfully been challenged in federal court as impermissibly discriminatory (under dormant commerce clause or equal-protection logics) against students who have graduated from out-of-state law schools.

The recent blog commentary on Wisconsin’s diploma privilege suggests that the scheme is a potentially effective substitute for the traditional bar exam in terms of ensuring legal competency. Those evaluations, as best I can tell, rest upon a relatively naïve and uninformed sense of what—and how little—diploma privilege entails in Wisconsin. The privilege is contained in Wisconsin Supreme Court Rule 40.03 and is based upon a 1977 state statute. The Rule hasn’t been amended since its promulgation, and its requirements are meager. A beneficiary must have earned at least 84 credits in the course of his legal studies at UW or Marquette. (Both schools actually require 90 credits to graduate). “Not less than 60” of those credits must be earned in courses specified by course subject matter in the Rule; these so-called “60-credit-rule” courses must have “as their primary and direct purpose the study of rules and principles of substantive and procedural law as they may arise in the courts and administrative agencies of the United States and this state.” At least 30 of those credits must consist of “mandatory” subjects; the other 30 can be fulfilled through specified “electives”. The remaining credits (24) can consist of clinics, externships, law review or moot court service, or traditional courses the subjects of which are not listed in the Rule.

It is useful to examine how the “mandatory” (or, the “30-credit-rule”) courses are defined—as “regular law school courses in each of the following subject matter areas: constitutional law, contracts, criminal law and procedure, evidence, jurisdiction of courts, ethics and legal responsibilities of the legal profession, pleading and practice, real property, torts, and wills and estates.” That’s it. The Rule says nothing about what exactly these courses need to contain, how they must be taught, or, even, how many credits must be allotted to each “mandatory” subject (as long as the total equals 30). They do not prescribe a level of mastery. At UW, by law school rule, students must obtain a weighted average grade of 2.0 in the Diploma Privilege classes in order to be eligible for the privilege. An average grade of 2.0 is quite a low barrier, one breached by only the dullest or unluckiest of students.

The “elective” courses required for Diploma Privilege are defined just as broadly, through a list peppered with pedagogical anachronisms: “damages”; “equity”; “future interests”; “quasi-contracts”; “trade regulation”—among more standard fare, such as “conflict of laws” and “torts”. Again, no guidance as to content or scope of coverage is provided.

The lack of detail leads to unprincipled variation in curricular content, across professors, across time, across institutions. For many years UW applied the Rule to require four credits of trusts and estates. In recent years, due to staffing shortages, the requirement was halved to two credits. UW interprets the Rule’s “criminal law and procedure” as requiring separate courses in criminal substantive law and, secondly, in criminal procedure, for a total of seven credits. Marquette deems the requirement fulfilled through the normal four-credit 1L criminal law course, which, of course, contains some—but not much—criminal procedure. UW requires two constitutional-law courses (six credits total); Marquette only requires one course.

Note that there is nothing in the Rule requiring the coursework to privilege Wisconsin law. Professors at UW and Marquette are free to use any course materials they wish, within only the loosest bounds of professionalism. They are free to design a course that focuses heavily on Wisconsin law, or moderately, or not at all. They are free to focus on the “law in the books” or on the “law in action”. They are free to use any of the standard casebooks available from national publishers like Westlaw or Lexis/Nexis. They are free to design their own idiosyncratic content. The Rule simply does not address in the slightest the mandatory content of “mandatory” and “elective” classes, apart from the titles, and in practice the deans of both UW and Marquette leave faculty more or less entirely free to design their Diploma Privilege courses as they wish. This means, for example, that the “mandatory” constitutional law course need not (and typically will not) have any content on Wisconsin constitutional law. The mandatory contracts course will probably address Wisconsin contract law only accidentally though the one or two Wisconsin cases—like Hoffman v. Red Owl Stores—that have become part of the 1L contracts canon.

In litigation, the temptation is to defend Diploma Privilege by claiming that the scheme’s discrimination against out-of-state law graduates is justified by the Wisconsin Supreme Court’s ability to oversee the rigor and relevance of the curriculum of in-state, but not of out-of-state, law schools. In fact, the Wisconsin Supreme Court plays virtually no active oversight role whatsoever. As I noted above, the Rule’s text hasn’t been updated in decades, and the Court shows no interest, at all, in meaningfully reviewing, let alone in dictating, the actual content of the Diploma Privilege courses that the Wisconsin law schools routinely certify as meeting the Rule’s requirements. The result is that the Diploma Privilege curriculum, as actually taught, on the whole probably varies little from the curriculum taught at any other quality law school in the country.

What is the function of the Diploma Privilege scheme? I don’t think it can seriously be argued that it is an effective guarantor of competence to practice law in the state. Rather, it largely serves to provide the in-state law schools with a competitive advantage in the market for law students who wish to practice in Wisconsin. A student from La Crosse who wants to practice in his hometown and who has offers from Marquette and from the University of Minnesota will have to think long and hard about whether going to the better-ranked school is worth it when going to Marquette will save him the hassle, cost, and uncertainty of the bar exam. It is no wonder that the Wisconsin law schools advertise Diploma Privilege as a benefit of attending their schools. It is a substantial one, especially as prospective law students tend to view the bar exam with unreasonable dread.

Secondarily, we can view Diploma Privilege as encouraging the graduates of in-state schools to stay in state after they graduate. A UW graduate may be less likely to take a law job in Chicago over one in Madison if doing so means that he has to take and pass the Illinois bar exam. In that way, Diploma Privilege probably increases the supply of Wisconsin lawyers—good for Wisconsin’s consumers of legal services, but probably not so good for Wisconsin lawyer salaries.

Thirdly (but entirely unintentionally) it serves to boost the national prestige of Wisconsin’s law schools by inflating bar-passage statistics, a component of the USNWR rankings. Because of Diploma Privilege, which virtually every graduate obtains, UW routinely reports a 100% bar passage rate. Marquette’s isn’t far behind. (A corollary benefit for faculty is that we are freed from the potential drudgery of teaching bar-exam doctrine; since our students don’t take bar exams, we don’t need to teach to the test and can safely ignore, if we wish, black-letter rules in favor of more intellectually interesting questions of theory).

Would law deans and faculty actually want to live in a world of diploma privilege with teeth? That world would entail state supreme courts telling us what to teach, and, perhaps, how to teach it. Law professors, used to being the kings of their classrooms, would, I think, chafe and rebel under meaningful court supervision. Wisconsin’s Diploma Privilege is tolerated precisely because it requires so little of those who implement it.

In any event, my point is really not to criticize Wisconsin’s Diploma Privilege, or to argue against its temporary use in response to the Covid-19 pandemic. My point is rather to problematize the notion that something like it is a good substitute for the bar exam. Bar exams may be poor guarantors of legal competence, but so too is diploma privilege—at least as practiced in Wisconsin.

Again, I thank Prof. Yackee for his contribution. I am in no position to mediate between the views offered here and those offered by the lawyers quoted in the story to which I linked in my previous post on the subject. But both are useful, insofar as they focus at a ground level on what does and doesn't work with respect to the privilege and thus offer food for thought about whether and why it is or isn't useful, whether it can be scaled or not, what it would require to work properly, and what all this would or should mean for law schools. A few comments:

1) No lawyer or law professor can be surprised by his suggestion that in practice the rules undergirding the privilege are not always applied in a stringent fashion or one that follows its assumed function and goals, or that it ends up serving guild or other interests rather than something more public-regarding. Any law professor or administrator who has watched his or her school working busily, in anticipation of an accreditation visit, to nominally retrofit or relabel existing courses so that they cosmetically reflect the ABA's supposed interest in "learning outcomes and assessment" and skills training will not be shocked by his suggestion that the 60-credit requirement ends up being defined in what we might call a generous fashion. Nor can anyone be shocked by the suggestion that in practice a rule often ends up serving guild purposes. There is a whole mandatory course, known as "Legal Ethics" or "Legal Profession," devoted in large measure to that topic. One can take due note of this without having to descend into complete cynicism. (Similarly, one can note without utter cynicism that even genuinely altruistic suggestions for reform of legal education and lawyer licensing can end up serving guild or interest-group or class interests first and the larger and more vulnerable population second.)

2) I'm not sure whether the guild analysis is complete. Yackee suggests that the result of the privilege is to increase "the supply of Wisconsin lawyers—good for Wisconsin’s consumers of legal services, but probably not so good for Wisconsin lawyer salaries." One would think a guild- or interest-based rule would result in artificial increases in lawyer salaries. More clearly needs to be said about which interests the rule as applied serves, on the assumption that it must serve some interest other than that of clients. But I do not view low lawyer salaries as a bad thing as such. (I would view it differently if those salaries were kept lower in order to keep the salaries or job security of Wisconsin law professors and bar officials higher, of course.)

3) Surely Yackee is right that if the bar were to actively police the diploma privilege and its requirements for Wisconsin law schools--if we were to see a "diploma privilege with teeth," as he calls it--law schools and their faculty would be unhappy. The idea that some rule is "tolerated precisely because it requires so little of those who implement it" applies to a good deal beyond this one example. One thing I have suggested in my recent posts is that we should ensure that reforms don't coincidentally slough off duties of serious supervision and evaluation on others without requiring much of us. Or, to put it in a more positive light, in thinking about these reforms, we should ask what hard work and unpopular choices are required of law professors to make them work. A charitable impulse toward graduating students, matched with arguments against meaningless or unadministrable barriers, that leads us to help graduating students through supervised practice or even a simple waiver of the bar exam without more should, if it is to work well and serve the interests of vulnerable clients, require law professors to be more rigorous in their teaching and evaluation and more willing to flunk more law students, whoever they may be, before they can harm clients. (Even with that greater willingness, we should also insist that supervising lawyers be willing to supervise with rigor and willing to declare at the end of a supervisory period that someone is unfit to practice.) The goal of current reforms is to get rid of artificial and impractical barriers, not to get rid of barriers altogether--not, at least, if our goal is to properly help clients and students. If neither a diploma privilege nor supervised practice are applied with teeth, then they do indeed become something we tolerate because it demands little of us.*

But while it is relevant in terms of the likelihood of proper implementation and the ability to persuade people to accept such reforms, I find the possibility that more law professors might be more unhappy under a reformed system "with teeth" otherwise irrelevant. On the list of factors to be considered in shaping or reforming legal education, the happiness of law professors should surely land at or near the bottom.

4) Although Yackee and the people I quoted in my earlier post come to different conclusions about the Wisconsin diploma privilege, I see both sets of comments as useful and complementary, in that both offer ground-level discussions of the privilege rather than abstract invocations of it. And although ABA Journal story I noted in my previous post seemed positive about the privilege, it's worth noting, as I did in the previous post, that what the lawyers in that story emphasized was not the curricular aspects of the privilege, but the general attitude that Wisconsin lawyers and law professors take their gatekeeping role seriously. Such a view would be consistent with Yackee's argument that the privilege, to the extent that it works, works by creating a highly Wisconsin-based bar. A bar that is more homogeneous and interconnected, in the sense that it has a large core of Wisconsinites who went to school in Wisconsin and practice there, is in a better position to monitor, mentor, and enforce professional norms. Whether that happens in practice in the state and whether the diploma privilege does enough to ensure that, or whether we instead see the emergence of the sorts of corruption to which small homogeneous professional and social groups are vulnerable, is beyond the scope of my knowledge.

Comments are reasonably welcome, but the ones I'd most like to see would come from Wisconsin lawyers and educators, who might offer their own experience and perspective. Of course, on the Internet no one knows if you're a cheesehead.

* On this and other points covered in the previous post, see also Prof. Deborah Jones Merritt's comment on a related post at TaxProf Blog.

Friday, May 15, 2020

Spring Reported Entry Level Hiring Report 2020

Following is a data summary of the Spring Reported Entry Level Hiring Report for 2020. To remain consistent with past years, while the spreadsheet contains all hiring information received, the data analysis includes only tenure-track hires at U.S. law schools. (The data analysis also includes several hires who requested not to be included in the spreadsheet at the date of this posting.)

President Trump’s decision to move his official state of residence from high-tax New York to no (income) –tax Florida has brought public attention to an issue that has long troubled scholars, as well as designers and administrators of income tax systems: how the interaction of tax rules deferring the taxation of income and tax rules based on residency allows taxpayers to reduce and even avoid taxation of their deferred income. These discontinuities in tax treatment may lead to excessive migration, as well as reductions in state income tax revenues.

Although trans-national moves of this sort are increasingly treated as “realization events” for tax purposes, triggering the immediate taxation of accrued but untaxed gains in the taxpayer’s country of original residence, the states of the United States have not tried to impose similar rules on residents moving to other states. This reluctance may stem in part from concerns that any attempt to do so would be struck down as a violation of the federal constitution’s Commerce Clause or its Right to Travel. But it may also stem from the fact that such a forced realization rule creates a different discontinuity; a tax rule accelerating the taxation of accrued gain penalize interstate movers (relative to those who stay put and continue to benefit from tax deferrals), disincentivizing such moves. Instead of too much interstate migration, there may be too little, interfering with both economic efficiency and what could be a valuable feedback mechanism about the performance of state governments. The same discontinuity problem arises in the international realm, of course, but there the difference in institutional structures and political sensibilities—not to mention larger revenue concerns due to higher tax rates—has led to a different policy outcome.

My paper analyses legal mechanisms or rules that might reduce both positive incentives and negative disincentives for interstate moves. A general move to mark-to-market taxation would eliminate the problem in its entirety. However, the practical and political obstacles to the uniform adoption of mark-to-market taxation for state tax purposes are significant; indeed, it is hard to see how this might develop without the federal government adopting mark-to-market treatment for federal tax purposes. And a move towards mark-to-market taxation by some states and not others would lead to a new set of discontinuities. The paper also analyzes the possibility of enhanced source taxation of nonresidents and of expanded taxation of part-year residents, only to encounter similar problems.

Ultimately, the paper concludes that this problem of discontinuous treatment is easy to identify but impossible to solve in a world in which state tax authorities rely on federal tax authorities for performing many of the hardest tasks involved in tax administration, while retaining considerable freedom to devise their own tax base definitions and set their own tax rates. There is a tax price to be paid for allowing states to be laboratories of democracy, catering to the heterogeneous desires of their populations.

This post is adapted from a draft paper to be published in a forthcoming symposium issue in Theoretical Inquiries in Law. The papers were part of the Legal Discontinuities conference held at Tel Aviv University Law School’s Cegla Center in December 2019.

The 11th Amendment and Admiralty

Here is what might sound like a trick question: Does the Eleventh Amendment give a state sovereign immunity from admiralty lawsuits (or, as they used to be called, libels) in federal court? Bushrod Washington faced this question on circuit in United States v. Bright, an important case that I'll say more about in another post. His answer was no. Why? Because the Eleventh Amendment refers to suits only in "law and equity." Admiralty is neither law nor equity, thus the text did not extend to admiralty suits. (Washington made other points in support of his conclusion, but this one was probably the strongest).

Wrong, said the Supreme Court a century later. In Re New York said that the the Eleventh Amendment could not be read literally due to the Court's decision in Hans v. Louisiana and that admiralty suits should not be exempted. (Steve Sachs and Will Baude discuss admiralty at some length in their recent article on the Eleventh Amendment). Hans was a terrible decision that gets pummeled by nearly everyone except a majority of the Justices, and this is just another reason to think that Hans screwed up the Eleventh Amendment badly.

This is just one of many doctrines where Washington got it right and the Court gets it wrong. I'll be giving more examples in the coming weeks.

Thursday, May 14, 2020

Another perspective on Wisconsin Supreme Court ruling

This from. Prof. Chad Oldfather (Marquette). In addition to general expertise on the subject, some valuable local knowledge from legal scholar in the room where it happens (Wisconsin!).

Among the things that are interesting about the decision is the statutory interpretation methodology. Attempting to cement textualism in place has been a longstanding project of the “conservative” justices (scare quotes both because I dislike assigning ideological positions to judges and also because I’m not sure conservative would even be the right label) in Wisconsin. The flagship opinion making the purported methodological commitment was written by Diane Sykes when she was on SCOWIS. Yet here it’s the dissenting opinions that lean on that case, while the majority relies a lot on legislative history. Meanwhile the two concurring justices whose overblown opinions you mention both lean on federal separation of powers ideas as if they transfer directly to the state context. And the footnotes are filled with venom towards one another. I’m finding it hard to remember what it’s like to live in a state with a well-functioning government.

§ 1983 or the 11th Amendment

One of my pet peeves is confusion about why states cannot be sued in § 1983 actions: It often is short-handed as being about sovereign immunity depriving a court of jurisdiction, when doctrinally it is about states not being "persons" subject to suit under the statute and there being no cause of action against a state (or state agency).

This arose in Colorado Dept. of State v. Baca (over "faithless elector" laws) through questions by Justices Breyer and Gorsuch suggesting that the parties colluded to maintain a meritless action in order to obtain a judicial ruling. It appears Baca sued the Secretary of State, then the parties negotiated to have the Department be named defendant and to not challenge its non-suability under § 1983. I would guess that proceeding against the state rather than the secretary was necessary for Baca to proceed with a claim for nominal damages, which was essential to establishing and maintaining standing. Counsel for both sides argued that the Court should not concern itself with this, that the availability of a cause of action is a non-jurisdictional issue that the parties can waive.* Gorsuch suggested that, even if waivable, it might be a basis to DIG the case.

[*] Scott Dodson blanched when he heard that.

I am glad both Justices used the appropriate terminology and framework and wish lower courts would follow suit. But it reveals how nonsensical it is to think of sovereign immunity (which has nothing to do with the text of the Eleventh Amendment) as a jurisdictional rather than merits limitation. Where Congress lacks power to abrogate (e.g., ADEA), the limitation is jurisdictional; where Congress has the power but declined to exercise it (e.g., § 1983), it is merits. Even if in both cases, a state is willing to be sued eo nomine.

Should Trial Outcome Be Based on the Median or the Mean? (by Omer Pelled)

Factual uncertainty is a frequent problem in legal disputes. Whenever the parties disagree on the facts, the trier of facts, be it a jury or judge, must examine evidence and infer the facts. Commonly, the evidence provides limited information, making it impossible to determine the relevant facts with certainty. Thus, based on the evidence, the factfinder might consider several alternative factual states, each of which can be associated with a different likelihood.

In civil disputes we usually think that factfinders are required to adopt the most likely factual state, and ignore the rest, under the preponderance of the evidence rule. In statistics, this rule is equivalent to choosing the median value to describe the center of a distribution. Interestingly, when confronted with actual statistical data, for example when examining the lost income of an injured child, courts adopt another central value – the weighted mean. These two options – the median and the mean – can be implemented to any factual dispute. For example, in a tort case if the jury decided that the probability that the defendant was negligent is 40%, awarding zero damages is equivalent of choosing the median, and awarding damages equal to 40% of the harm is equivalent to awarding the weighted mean.

The choice between the median or mean is not limited to civil disputes. In criminal law, for example, when the punishment is determined by a three-judge panel, the law states that the punishment is determined by the median judge. E.g., is two judges supported a punishment of one year imprisonment, and the third thinks that the defendant should be imprisoned for four years, the punishment would be one year imprisonment (the median) and not two years (the weighted mean).

Each measure of central location – the mean or the median – has some appealing attributes. The median minimizes errors (in absolute values), making factual decisions most accurate. Furthermore, the median is much less sensitive to outliers, disincentivizing the parties from making wild factual claims. The weighted mean however, in many cases, creates better incentives regarding primary behavior.

Notice that the choice between median or mean has an important implication regarding the continuity or discontinuity of legal outcomes - When courts adopt the median, legal outcomes become less sensitive to changes in the probabilities, leading to the “all-or-nothing” feature usually associated with the legal process, especially when the court considers only two possible factual states. The value of the weighted mean, however, changes with every variation of the distribution, making the legal outcome continuous over the changes in probability.

In a forthcoming article in Theoretical Inquiries in Law, dedicated to discontinuity in the law, I argue that the choice between these two possibilities in civil disputes should depend on the normative goal of private law. If the law is designed to promote corrective justice, courts should always adopt the median outcome. If, however, the goal of private law is to create optimal incentives, it should sometimes adopt the weighted mean. In the article I show under what conditions the mean creates better incentives than the median.

This post is adapted from a draft paper to be published in a forthcoming symposium issue in Theoretical Inquiries in Law. The papers were part of the Legal Discontinuities conference held at Tel Aviv University Law School’s Cegla Center in December 2019.

Wednesday, May 13, 2020

The Most Famous Presidential Elector

In honor of today's Supreme Court cases on faithless electors, here is a trivia question. Who is the most accomplished person to serve as a presidential elector? I think that I know the answer, but admittedly reasonable people may disagree. Take your best shot, and I'll give an answer tomorrow.

UPDATE: Bill Clinton and James Wilson are both excellent choices, as sharp-eyed readers pointed out.

Wisconsin Supreme Court decision on COVID-19: a quick take

A 4-3 majority struck down the DHS emergency shelter-in-place order. In a remarkably convoluted opinion, sowing confusion at the very least and reflecting the polarization that plagues modern-day law & politics in the great state of Wisconsin.

How so?

First, you’ll see that it is 161 pages. 40 pages is taken up with two concurring opinions which offer a rather extravagant set of claims about nondelegation, separation of powers, anti-administrative state, natural rights, etc., etc. Over-the-top stuff. Read it and (depending upon your priors) weep or cheer.

Second, there is a hard question surfaced by Justice Bradley at the beginning of the dissent and that is whether there are truly four votes for implementing this decision immediately, and therefore without a stay. One of the concurring judges says she would impose a stay. But she joins the majority opinion “in full” (see her fn.1). So, it is confusing whether this is 4-3 or 3-3-1. The answer to this question is of course essential as a practical matter. Maybe this will be unraveled in the next day or even in the next few hours.

Third, the scope of the ruling is narrow, in that four justices note that this order exceeds the agency’s statutory authority – not the governor’s authority, which he could arguably exercise under his emergency powers. On the other hand, we know from the two concurring opinions that these two justices wouldn’t go along with a do-over whereby the governor imposed the order or, alternatively, an order that complied with all the administrative procedures imposed by the statute.

So, this case took a week to come out, and I can see why. They never were able to reach any real agreement about why the order was bad. Nor were they able to give any real guidance to either the executive or legislative branch about truly how to fix the problem. Nonetheless, we are treated to 161 pages of text, wandering around John Locke, Thomas Jefferson, Scalia and Gorsuch, some prominent anti-administrativists, a couple Wisconsin L Rev student comments, and a bunch of Wisconsin cases that don’t, at least at a glance, seem to be very much on point.

UPDATE: As the first comment notes, I mixed up two justices in noting that a concurring justice said in footnote that she joined the majority opinion "in full." This was not the justice who authored the majority opinion, Chief Justice Roggensack. I stand corrected. However, the same confusion remains: What do we do about a majority opinion that says "no stay" with a concurring opinion, issued by the author of the majority opinion, that says "stay?" If I had to choose, I would say that the majority opinion stands on its own terms, and we thereby get to four. But we get there by simply disregarding the CJ's concurring opinion. It's tantamount to "I wish I could have convinced my colleagues to issue a stay, but I couldn't and so I'll just tell you why I am bummed."

Testing the Koufax Curse

Last fall, I wrote about three Jewish players (Alex Bregman, Max Fried, and Joc Pederson) playing Division Series games on Yom Kippur, then offered tentative responses to the question posed by Armin Rosen of Tablet about why we focus so much on playing on Yom Kippur and no other days. Rosen also jokingly suggested that 2019 demonstrated the work of the Koufax Curse befalling players who fail to follow in Koufax's Yom Kippur footsteps.

In a draft paper on SSRN, I test the Koufax Curse by developing an explanation for our obsession with playing on Yom Kippur and by examining career statistics in Yom Kippur games by eighteen Jewish players, plus Rod Carew. This has been a fun piece to write. The abstract is after the jump. It emains a work in progress, and I welcome feedback.

Proof Discontinuities and Civil Settlements (by Mark Spottswood)

Few areas of the law involve more “bumpiness,” as Adam Kolber would put it, than traditional burden of proof rules. Consider a jury that has heard enough evidence to think that a civil defendant is 49% likely to be guilty. Under existing law, they are expected to award precisely $0 in damages to the plaintiff. Add a tiny shred of additional evidence, which is just strong enough to push their confidence level in guilt up to 51%, and we instead expect them to award full damages. The evidence in the two cases is nearly identical, but the result is radically different.

Many scholars have previously questioned the optimality of this arrangement, especially in comparison with what I have called a continuous burden of proof rule. If we think of the traditional rule as a light switch, moving from 0 to full damages once its threshold point is reached, the continuous rule is instead like a dimmer switch. As the jury’s level of belief in guilt rises from 0% confidence to 100% confidence, a continuous rule incrementally escalates the level of damages they should award from $0 to the full amount of damages suffered by a plaintiff. Such rules have a number of attractive features. First, they provide better deterrence in cases where parties can foresee, when acting, how likely a jury will be to find them liable. Second, they spread expected outcome errors more evenly across parties, so that fewer innocent defendants pay the full amount of damages, and fewer deserving plaintiffs receive an award of $0. Third, they reduce the impact that various biases and other sources of unfairness may have on the judicial process. And finally, they may also reduce incentives that parties currently have to destroy evidence or intimidate witnesses into silence. But these benefits come at a cost. As David Kaye has shown, we should expect the traditional rule to produce a smaller amount of expected error at trial than the continuous rule, at least in single-defendant cases.

Of course, the preceding discussion ignores an important means by which parties themselves may smooth the law’s bumpiness, which is by settling their cases for an agreed-upon sum. Parties settle far more cases than they take to trial. Moreover, parties typically take expected outcomes at trial into account when making settlement decisions. As a result, if we seek to optimize expected trial outcomes in isolation, without attending to how our trial rules may alter settlement behavior, we may work unintended harm, either by undermining parties’ ability to avoid high litigation costs through settlement, or by incentivizing settlement amounts with higher rates of expected error. Thus, for my contribution to the Legal Discontinuities conference, I attempted to take some initial steps towards understanding how parties’ might change their settlement behavior if we shift from our traditional burden of proof rule to a continuous alternative.

Half the Guilt (by Talia Fisher)

Criminal law conceptualizes guilt and the finding of guilt as purely categorical phenomena. Judges or juries cannot calibrate findings of guilt to various degrees of epistemic certainty by pronouncing the defendant ‘most certainly guilty’ ‘probably guilty’, or ‘guilty by preponderance of the evidence’. Nor can decision makers qualify the verdict to reflect normative or legal ambiguities. The penal results of conviction assume similar “all or nothing” properties: punishment can be calibrated, but not with the established probability of guilt. In what follows I would like to offer a broadening of legal imagination and to unearth the hidden potential underlying a linear conceptualization of guilt and punishment, as it may unravel in the context of the criminal trial and in the realm of plea bargaining.

Probabilistic sentencing- namely, calibrating sentence severity with epistemic certainty- is one prospect for incorporating linearity into criminal verdicts and punishment. The normative appeal of probabilistic sentencing is rooted in deterrence and expressive considerations. From a deterrence perspective there is room to claim, that in cases where the criminal sanction generates a social cost that is a function of its severity (all incarcerable offenses) probabilistic sentencing can be expected to facilitate a higher level of deterrence as compared to the prevailing “Threshold Model”, for any given level of social expenditure on punishment. [1] As for expressive considerations: While at first glance calibrating sentence severity with epistemic certainty would seem to undermine the expressive functions of the criminal trial by severing the connection between severity of punishment and the force of the moral repudiation, closer scrutiny reveals that it could actually allow for refinement of the criminal trial’s expressive message. The question of criminality invokes the most complex and tangled categories dealt with in law, interweaving the descriptive and the normative. The prevailing “Threshold Model” dictates that the manifold aspects of criminality and criminal culpability be ultimately translated into the legal lexicon’s strict, one-dimensional terms of conviction or acquittal. But, such an impoverished conceptualization may result in the loss of valuable information. A probabilistic regime, in contrast, would allow for a more accurate reflection of the gray areas that permeate criminal culpability. Moreover, under the prevailing “Threshold Model”, acquittal covers a vast epistemic space, and therefore cannot effectively signal clearance of a defendant’s name. Under a probabilistic regime, on the other hand, the message of acquittal is of expressive meaning and significance, due to the narrowing of the epistemic space it encompasses.

Beyond the normative appeal of probabilistic sentencing, there is room to claim that central criminal law doctrines and practices already exhibit its underlying logic, and effectively deviate from the “Threshold Model” ideal, with its “all-or-nothing” binary outcomes. Some of these doctrines, such as the residual doubt doctrine, create an explicit correlativity between certainty of guilt and severity of punishment. Other legal practices, such as the “jury trial penalty” and the “recidivist sentencing premium, forge an indirect reciprocity. Thus, the imposition of harsher sentences on convicted defendants who chose to assert their constitutionally-protected procedural rights—most notably, the right to trial by jury—has become routine practice in many American courtrooms. It can be understood as an expression of the link between certainty of guilt and severity of punishment. The relative gravity of sentences in jury trials is reflective of the elevated certainty as to guilt in the wake of a jury verdict, whereas the relatively lenient sentences in bench trials is due, at least in part, to a lower degree of epistemic confidence in the conviction (despite the fact that both convictions may surpass the BARD threshold). The same holds true for the recidivist premium. The additional information submitted post-conviction—regarding the defendant’s prior convictions—reinforces the convicting versict and pushes the probability of guilt, which has already been substantiated (as inferred from the mere fact of conviction), to a point that comes even closer to absolute certainty.

Tuesday, May 12, 2020

Entry Level Hiring: The 2020 Report - Final (?) Call for Information

This is, I think, the final call for information for the Entry Level Hiring Report. I currently plan to close reporting on Friday, May 15. If, however, you know that there is ongoing hiring, please let me know, and I will extend that date. Absent any such information, though, I will close the report on Friday, May 15.

If you have information about entry-level hires for this year, or know that there are outstanding entry-level offers that will not be resolved until after May 15, please either email me directly (sarah *dot* lawsky *at* law *dot* northwestern *dot* edu), or add a comment to the original information-gathering post.

Please encourage anyone you know who has accepted a job but isn't reflected on the spreadsheet to contact me.

As a reminder, I am looking to collect the following information for tenure-track, clinical, or legal writing full-time entry-level hires:

Justice Story and the Mystery Dissenters

One curious aspect of the Marshall Court's cases involves Justice Story's dissents. For many years, Story had a practice of not naming the Justices who signed his dissenting opinions. He would instead say something like "One of my brethren concurs in my opinion." We are then left to guess who that person was.

No other Justice appears to have followed this practice. Though dissents joined by more than one Justice were rare in those days, they did occur. And when they did, the other Justices typically said something like "I am pleased to say that Justice [Name] joins my opinion." I don't know why Story did the opposite, or why the Justices who joined his dissents did not insist on being named.

In one case, the Court Reporter added a footnote naming the anonymous Justices who joined a Story dissent. I'm going to try to see if journalists might have named the others, though that's a long shot.

Probabilistic Disclosures for Corporate and other Law (by Saul Levmore)

Corporate law is a striking area where probabilistic information ought to be made widely available. This information often has elements of continuity and discontinuity, but it is at present withheld because disclosure is accompanied by the risk of liability when it is later discovered to have provided an inaccurate particle of information. It is not simply that corporate and securities law make use of continuous as well as discontinuous rules. For example, continuously defined controlling shareholders are subject to a strict fiduciary obligation, while discontinuously defined acquirers must make the government and the world aware of their holdings of more than 5% (depending on the jurisdiction, but almost all countries have such categories) of the stock of a corporation. Many areas of law are peppered with such contrasts. But corporate law, like the law governing products liability, medical malpractice, and other areas where disclosure is law’s centerpiece, is also home to rules that encourage vague information of limited usefulness. Ironically, disclosure rules discourage better disclosure. Much as a surgeon is encouraged to disclose that there is “some chance” that an operation will lead to death, corporations are encouraged to say things like “a lawsuit that has been brought against us presents some risk that our profits will decline.” In both cases, the better-informed insider could more usefully offer a series of probabilities, but current law discourages such disclosures.

When law requires disclosures, the product is often categorical. Investors might prefer probabilistic information, but it is often easier to make disclosures in binary form, though this is of little use to the audience. The key point here is that more useful disclosure opens the disclosing party to claims of misrepresentation because it is easier to err when revealing a great deal of probabilistic information than it is when making vague categorical information.

In 2019, Senator Elizabeth Warren, while attempting to be the Democratic candidate in the 2020 U.S. presidential elections, suggested that corporations should be required to disclose the fact that climate change might have an adverse effect on their projected earnings. Admittedly, the idea was not to inform shareholders about their investments, but to raise interest in climate change and to encourage greater political support for laws aimed at this problem. If shareholders thought that unmitigated climate change would affect their investments, they might be more inclined to pay higher taxes or sacrifice short-term profits in order to enjoy a more secure future. Warren’s idea was consistent with many disclosure requirements, as the suggested disclosures provided less information than they might have. A corporation is required to disclose knowledge of factors that might have a significant impact on the value of the firm. For example, firms regularly reveal the presence of lawsuits, and usually report (accurately, let us assume) that management does not expect the litigation it describes in its annual statements to have a significant impact on projected profits. The disclosure is not unlike that found to avoid products liability or to protect against claims brought against health-care providers for failing to disclose risks. There are risks, but disclosures often do not contain much information; firms issue vague warnings when they could disclose more useful information that they can easily obtain. For instance, a firm has probably calculated the risk attached to each lawsuit it faces, in order to decide how much to spend on defense or whether to settle a case on some terms. An optimist might say that present disclosures inform motivated recipients to investigate further, but usually the point of disclosure is, or ought to be, to lower the overall cost of information acquisition by placing the burden on the better-informed party, and especially so if this is likely to avoid duplicative information gathering by other, dispersed parties. The reality is that most disclosures are sensibly made as vague as possible in order to comply with the law, while avoiding ex post judgments that they were misleading or knowingly incomplete. “This product may contain peanuts” is much less useful than the information actually available to the producer of foodstuff, and the same sort of thing is true in corporate law.

Accounting practices, in particular, often provide less information than is actually available. An accountant might say that corporate disclosures were verified in compliance with generally accepted accounting standards, but this is presumably inferior to the accountant’s disclosure that “We investigated the corporation’s report of income and based on statistical sampling, we think it is 30% likely that the disclosure is accurate, 50% likely that income is somewhat greater than reported, but has been under-reported perhaps to avoid future lawsuits, and 20% likely to have been overstated (10% by an amount greater than $1 million).” If the corporation is later accused of misrepresentation, it will normally be safe if it adhered to “generally accepted accounting principles.” The corporation needs to fear litigation only if it intentionally misrepresented or held back information from the market or from the accountants. The reliance on accounting conventions is striking. In some cases, like the reporting of interest expenses, the accounting information is precise and readily compared to that produced by other companies and their accountants. But other information is vaguely specific. It is not surprising that a party considering the purchase of a company will investigate assets and past performance, and will rarely rely on accountants’ previous reports. Better information is plainly available to the prospective acquirer, but law seems satisfied or more comfortable with the (unnatural but available) demarcations provided by accounting conventions.

One solution would be for law to promise that so long as the information disclosed was as informative as that found in minimally compliant documents or announcements, then disclosing parties would find themselves in a safe harbor, protected from future litigation and discoveries that some pieces of information were inaccurate. The market might then encourage the provision of useful information. Similarly, I would prefer that my doctor tell me that an operation has a .04% chance of killing me and a 1% chance of requiring a blood transfusion, rather than being told “This procedure can lead to death or a need for a blood transfusion.” Indeed, I might like to see a curve representing the likelihood of various outcomes. There is, to be sure, the danger that the information provided will be inaccurate, through error or misbehavior by a subordinate, but the idea is for the disclosure to be protected so long as it provides more information than that offered in the familiar vaguely specific form. In the corporate context, a corporation would be within this safe harbor if, for instance, it gave probabilistic information about projected sales and costs so long as this information was superior to “We do not expect lawsuits against us to significantly affect our future, and the numbers offered here are reported according to accepted financial standards.” Accounting firms could be in the business of certifying that the probabilistic information revealed, even with inevitable mistakes, was at least as useful as the vague information that would comply with the law.

In short, there are areas where more information is available, and where investors and consumers could be given more useful information. They will receive this information if the provider is protected by a rule that recognizes that although more information is likely to contain more errors, it is still more useful than the vaguely specific statements that currently comply with law. Corporate (and securities) law is a good place to start experimenting with this idea for more useful disclosures.

This post is adapted from a draft paper to be published in a forthcoming symposium issue in Theoretical Inquiries in Law. The papers were part of the Legal Discontinuities conference held at Tel Aviv University Law School’s Cegla Center in December 2019.

Monday, May 11, 2020

Mandatory retirement for academics?

From a humanities professor, although I imagine the same arguments could and would be made about law professors. The article loses me a bit with the argument that besides scholarship drying up, being a senior academic means "repeatedly teaching the same courses on the same books with the same notes." That practice does not strike me as a product of age or seniority; I know many senior academics who would never dream of teaching this way and many more-junior academics who have been doing this since their careers began.

This proposal contrasts with the article discussed in this post, which argues that teaching effectiveness lasts far longer than scholarly creativity, at least for those who enjoy and wish to pursue that route.

The Section on Professional Responsibility seeks papers addressing the role of legal and judicial ethics in the Post-#MeToo world. This program calls for scholars to confront big questions facing the profession about sexual discrimination, harassment and other misconduct. In 2016, the American Bar Association amended Model Rule 8.4(g) to say that it is professional misconduct to “engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socio-economic status in conduct related to the practice of law.” Few jurisdictions have adopted this change, and some explicitly rejected it on First Amendment grounds. In 2019, the federal judiciary amended the Code of Conduct for U.S. Judges to make clear that misconduct includes engaging in unwanted, offensive, or abusive sexual conduct and to protect those who report misconduct, but some argue the reforms do not go far enough and they do not apply to state judges or to the U.S. Supreme Court. Congress held hearings on sexual misconduct in the federal judiciary in early 2020. Lawyers and members of the judiciary have avoided investigations into credible allegations of sexual assault, discrimination, and harassment by resigning their positions, only to move on in other positions in the legal profession and, in some instances, repeating the same misconduct. Headlines regularly feature attorneys and their involvement in sexual misconduct in the workplace and beyond, whether as bystanders, facilitators, or perpetrators. This program seeks contributions to address these complex and controversial issues. Panelists will discuss the role of lawyer and judicial ethics as a means to remedy the enduring sexual misconduct in the legal profession and beyond. Jaime Santos, founder of Law Clerks for Workplace Accountability and commentator for the acclaimed podcast Strict Scrutiny, is confirmed as a presenter. At least two additional presenters will be competitively selected from this call for papers.

Topics discussed at the program might include:

Does ABA Model Rule 8.4(g) addressing sexual harassment run afoul of the First Amendment?

Is ABA Model Rule 8.4(g) merely a values statement or is it a source for discipline?

What obligations, if any, do disciplinary authorities have to investigate credible, public information about alleged sexual misconduct by the lawyers licensed to practice in their jurisdictions?

Should regulators adopt new rules or policies to address sexual misconduct, including the ability of lawyers and judges to avoid investigations by resigning their positions?

If other areas of law (criminal, civil) do not cover aspects of sexual misconduct, is there a role for professional conduct rules to do so because of the lawyer’s special role in society?

What reporting obligations do law schools have as they certify students’ fitness in bar admission applications? How does this fit within the Title IX framework?

Should ethical rules on sexual misconduct that apply to the federal judiciary also apply to the U.S Supreme Court?

How should reporting systems be improved?

To be considered, please email your paper to Renee Knake, Chair of the Section on Professional Responsibility, no later than August 1, 2020 at [email protected] Preference will be given to completed papers, though works-in-progress are eligible for selection. The Call for Paper presenters will be responsible for paying their registration fee and hotel and travel expenses. Please note that AALS anticipates that the Annual Meeting will go forward (https://am.aals.org/), and the theme is The Power of Words.

Providing Real-World Context for the 1L Civil Procedure Course

The following post is by Jack H. Friedenthal (GW), Arthur R. Miller (NYU), John E. Sexton (NYU), and Helen Hershkoff (NYU) and is sponsored by West Academic.

Civil procedure scholars disagree about many things—the scope of pleading rules, the need for liberal discovery, the role of litigation as a regulatory enforcement mechanism. But there is universal agreement that the first-year course is challenging to teach: As the law reviews put it, the course is “hard," “mystifying, frustrating, and difficult” and even “alien and incomprehensible." Civil procedure teachers also agree on the source of the problem: Our students typically lack a real-world context in which to study and engage with the rules and doctrines that they are learning. Numerous teachers have stepped up with excellent books that can supplement the basic procedure casebook, offering simulated case studies, drafting exercises, and practical study aides. Unquestionably these resources can enhance the classroom experience and improve student learning outcomes. Indeed, we reference many of these titles in the Teacher’s Manual to our casebook. The COVID-19 crisis, and the need for many of us to teach remotely, has created additional difficulties for teaching the first-year course as we each incorporate technology into the classroom.

Inputs and Outputs vs. Rules and Standards

I don't love the name “Legal Discontinuities.” Discontinuities are perspectival. For example, in countries with progressive income taxes, as your income rises by just a dollar above some often arbitrary cutoff point, your marginal tax rate can go from, say, 20% to 30%. If we think about the relationship between income and marginal tax rate, it looks discontinuous. On the other hand, if you look at the relationship between income and total taxes owed, as you go a dollar above the threshold, you owe just a little more than you owed when you were just below the threshold.

The lesson I take is that legal input-output relationships are the central issue: how do we map things that law cares about—inputs such as reasonableness, culpability, and harm caused—onto legal outcomes that law cares about such as compensation owed, fine amounts, and years in prison? As I see it, we begin with a theory of the relationship particular inputs and outputs ought to have and compare the theoretical relationship to the one the law actually gives them. In the example above, what matters is the relationship between income and taxes owed not income and marginal tax rate. Subject to some important caveats, the input-output relationships we see in the law should match the input-output relationships our best theories recommend.

When a gradual change to an input causes a gradual change to an output, I call that a smooth relationship. By contrast, when a gradual change to an input sometimes has no effect on an output and sometimes has dramatic effects, I call that a bumpy relationship. There are, however, an infinite number of ways to map inputs and outputs, and these are just shorthand names for two common types of input-output mappings. (In his conference paper, for example, Mark Spottswood discusses a logistic relationship which is one kind of smooth relationship).

We must speak of inputs and outputs because the vocabulary of “legal discontinuities” is inadequate. People easily confuse the continuity of inputs and outputs with the relationship between them. For example, in tort law, when you just cross the threshold of being unreasonably incautious, you now owe full compensation for the harm you caused. That’s a bumpy relationship because a gradual change to your level of caution has a dramatic effect on the amount you owe. This is true even though compensation is paid in the form of money which would naturally be described as a continuous variable. “Money owed” seems scalar though it’s used here as part of a bumpy relationship. So that’s why I think it’s fine to speak of inputs and outputs as scalar or binary or continuous, but those terms don’t do justice to what we really care about, namely the underlying relationships between inputs and outputs.

The smooth-bumpy distinction is sometimes confused with the rule-standard distinction, though they are conceptually quite different. The rule-standard distinction archetypically applies to the triggering circumstances of a particular law (or regulation or the like). If the triggering circumstances are well-defined, easy to apply, require little discretion, and so on, then we deem the law to be “rule-like.” For example, a law prohibiting driving above 65 miles per hour is very rule-like because it is clearly defined, easy to apply, and requires little discretion. If, however, the triggering circumstances are difficult to define in advance, require judgment to apply, give the decisionmaker substantial discretion, and so on, then we deem the law “standard-like.” For example, a law prohibiting driving at an “unsafe” speed is very standard-like.

Justice Souter and Bushrod Washington

I have a question for any clerks of Justice Souter who care to answer. I'm told that the Justice at some point had a portrait of Justice Washington in his chambers. I am trying to confirm whether this is true. If anyone can shed any light on this, I would be grateful for your assistance.

Welcome to the "Legal Discontinuities" Online Symposium!

On December 29-30, 2019, the "Legal Discontinuities" conference was held at Tel Aviv University's Cegla Center for Interdisciplinary Research of the Law (here's the link to the program). We welcomed papers by Avlana Eisenberg, Lee Anne Fennell, Talia Fisher, Eric Kades, Leo Katz, Saul Levmore, Julie Roin, Re'em Segev, Mark Spottswood, and me. I was pleased to co-host the conference with Talia Fisher. Over the next two weeks, we'll share blog posts from most of these contributors as well as some of the commentators, such as Ronen Avraham and Omer Pelled.

What are legal discontinuities? Well, that's part of what the conference is about. They involve all sorts of ways in which small changes to legal inputs lead to dramatic changes to legal outputs. For example, Leo Katz has asked, "Why is the law so all-or-nothing?" and defended the view that the law is and must be so. By contrast, I have focused on the distinction between smooth and bumpy laws and argued that there are probably good opportunities to smooth the law and make it less all-or-nothing. It is truly a cross-disciplinary legal topic, as illustrated most vividly perhaps by Lee Anne Fennell's articles and recent book which address property law, environmental law, business law, and pretty much everything else. For my six-page opening remarks to the conference, click here.

When the topic of legal discontinuities has appeared on Prawfs in the past, Orin Kerr and others have asked how some of these issues differ from rule-standard issues. I tried to answer that in my opening remarks, and I'll post those thoughts later today. Then, we'll get started in earnest tomorrow morning with a blog post by Saul Levmore, former dean of the University of Chicago Law School, on probabilistic disclosures. All of the presenters' papers will be published in a forthcoming issue of Theoretical Inquiries in Law. The journal has kindly allowed us to present this online symposium (and eventually publish the final papers) under generous open access conditions. Many posts will link to their current iterations on SSRN or elsewhere. We look forward to participation from conference authors, their commentators, and Prawfsblawg viewers like you!

Are No-Fault Divorce Laws Unconstitutional?

I pose this question to understand how the Constitution should be read rather than as a litigation question.

In Dartmouth College v. Woodward, the Supreme Court held that the Contracts Clause barred New Hampshire from rewriting Dartmouth's corporate charter to change the school from a private institution into a state college. (This case gave us Daniel Webster's most famous oral argument.) There were three opinions (one by Chief Justice Marshall, one by Bushrod Washington, and one by Joseph Story).

New Hampshire's most ingenious argument was the Contracts Clause could not be read as broadly as Dartmouth suggested because such a reading would mean that state divorce laws were unconstitutional. A divorce law, of course, does interfere with the obligations of a marriage contract by allowing people to end them.

This argument was taken very seriously. The Chief Justice responded in his opinion that state divorce laws were valid because they required fault. In that sense, they were no different from general contract principles that released people from their obligations if there was fraud or some sort of sort of serious wrongdoing. Whether a no-fault divorce law would be valid was, he said, a difficult question that need not be decided. Justice Story instead stated that he thought a no-fault divorce statute would be unconstitutional, if one were ever enacted. (Washington declined to take on this difficult issue, as it was unnecessary to decide the case.)

The Contacts Clause was read out of the Constitution long ago by the Supreme Court. Still, what about the original understanding of the Contracts Clause? What would the Framers have thought about no-fault divorce? I don't know the answer, but it's a great question. Then take the next step. What did the Framers of the Fourteenth Amendment think about this? Anything different?

In 1879, the Court decided Hunt v. Hunt and issued in a one paragraph per curium opinion that quoted selectively from the Chief Justice's Dartmouth College decision. The Court Reporter summarized Hunt's holding as: "The contract of marriage is not a contract within the meaning of the provision in the Constitution prohibiting States from impairing obligations of contracts." The opinion in Hunt did not say that, but that's how it was understood afterwards.

Saturday, May 09, 2020

How many FLOTUSes?

We were watching the documentary on Michelle Obama. In one segment, she is introduced before a speech as the 44th First Lady. But there have been more FLOTUSes than POTUSes. I count 52*--two women served in the role for Jackson, three for Tyler, two for Cleveland's first term, two for Benjamin Harrison, and three for Wilson. So that would make Obama the 51st FLOTUS and Melania Trump the 52d FLOTUS.

[*] William Henry Harrison's wife was too sick to travel from Ohio to Washington. Harrison's daughter-in-law Jane Irwin Harrison performed the role for the month.

Do we designate and recognize other office holders as we do POTUS? Is it too confusing to have numbers for FLOTUS or VPOTUS (there have 48, not more because there was no mechanism for filling the frequent vacancies pre-1967) that depart from the POTUS number with which everyone is familiar?

• In 2005-07, plaintiffs in excessive-force cases prevailed 56 % of the time; in 2017-19, defendants prevailed 57 % of the time.

• This graph shows that the flip in plaintiff success is a recent development. From 2014-16, plaintiffs prevailed 52.2 % of the time; for 2017-19, it dropped to 43 %. Some of that might be traceable to the influx of Trump appointees (recognizing that some, such as Don Willetts of the Fifth Circuit, have criticized qualified immunity), as well as the hint from SCOTUS's summary reversals.

• The dark blue represents cases in which the court found no excessive force; the medium blue represents cases in which the court found excessive force but that it was not clearly established that the force was excessive; the light blue represents cases in which the court skipped the merits question and found that it was not clearly established that the force was excessive. That third category has expanded the past two years.

• Courts (including SCOTUS) increasingly demand factual overlap with precedent before finding a right clearly established. Case in point: The Ninth Circuit granted qualified immunity because no precedent held that the Fourth Amendment was violated by police stealing private property while executing a search warrant.

• The latter two colors (which, on the eyeball test, appear to represent a bit less than half of the defendant victories) establish the new problem: Courts demand factual overlap for a right to be clearly established, then refuse to provide a precedential opinion that can serve to clearly establish that right going forward.*

[*] Courts seem more willing to reach the merits--so the right now is clearly established--in non-police, or at least non-excessive-force, cases.

• SCOTUS will review multiple petitions involving qualified immunity at its May 15 conference. These include the stolen coins, an officer who deployed a police dog on a non-resisting suspect, an officer who shot a child while attempting to shoot the non-threatening family dog, and Kim Davis trying to avoid damages for ignoring Obergefell (I used this in Civil Rights in the fall). Justice Thomas called for reconsidering qualified immunity in his concurring opinion in Ziglar v. Abbasi; this will be a chance to see if anyone else wants to follow him down that path.

Domestic Life and the Supreme Court

Much is being made of the fact that you could hear somebody flush a toilet during one of the Supreme Court's telephone arguments this week. Oh no! What about the mystique of the Court? Not letting sunlight in upon magic, and so forth?

These concerns bring to mind a story that I recount in my forthcoming book. The British burned down the Capitol during the War of 1812. At that time, the Court met in the Capitol. Afterwards, Chief Justice Marshall wrote Bushrod Washington a letter essentially saying "Where are we going to meet? You have to figure this out."

The Court ended up meeting for the next two years in a private house (owned by the Court's Clerk) on Pennsylvania Avenue. The Justices heard argument in the front parlor, and spectators either crammed into the room or tried to listen through the windows. The Clerk had eight children, who would play and make lots of noise during the sessions, when they weren't running into the room and then being told something like "Shoosh--the Supreme Court is in session." Flush toilets had not yet been invented for widespread use. But if they had been, people would have heard plenty of flushes during these sessions.

Some observers in 1815 and 1816 said that the whole scene was undignified. Yet the Republic survived.

Thursday, May 07, 2020

Is Aaron Burr is one of our Constitution’s Most Important Founding Fathers? The Legitimacy and Ubiquity of Partisan Constitutional Interpretation

With The Partisan Republic: Democracy, Exclusion, and the Fall of the Founder's Constitution, Saul Cornell and Gerry Leonard have produced a tour de force of constitutional history, the central gist of which is that the constitutional founders failed to achieve their vision. According to Saul and Gerry, the founders aspired to create a republican regime in which elites ruled without political parties, governing with the consent, but not under the control, of non-elite voters. By 1832, this genteel model of popular government was swept away by the rise of Andrew Jackson’s and Martin Van Buren’s rival model of partisan democracy. In the partisan republic, nonelite but propertied white men ruled the roost, excluding not only the pretensions of what Federalist framers would call the “natural aristocracy” but also women, Indians, and African-Americans. Aside from advancing an important thesis, the book is an addictively good read that encapsulates an action-packed period, from the 1780s to the Cherokee Nation's forlorn litigation of the early 1830s, in briskly elegant prose.

Although Partisan Republic is essential reading for historically minded constitutional scholars, I imagine that many legal scholars wedded to one or another form of originalism might be confused by the reference to a “Fall of the Founders’ Constitution” in the title. If one concedes that the Constitution contains gaps, then it should be no surprise that the struggle over how to fill those gaps became the occasion for fierce debates. Providing a space for such politics, our originalist might argue, is precisely the point of the original document’s gaps. It does not contradict the “Founders’ Constitution” for lots of partisan debates to occur where the Constitution’s original public meaning does not specify any rule. The elite, mostly Federalist, founders may themselves have fallen from power – but their Constitution, ambiguous as it is, still rules us all where its language is plain.

As I explain after the jump, I think that this originalist rejoinder to Saul’s and Gerry’s project misses the mark, because the originalist misunderstands constitutional ambiguities as linguistic oversights rather than (as I have argued) political strategies. The gaps in constitutional text could not be "liquidated" by referring back to the shared constitutional purposes of 1788, because, at least with respect to the controversies described by Saul and Gerry, the Constitution's ratifiers lacked any such shared purposes. They merely sought to defer disagreements that might have defeated constitutional ratification. Instead, as Saul and Gerry brilliantly describe, politicians in the early republic resolved constitutional differences through a cocktail of moral rhetoric, constituent self-interest, and voter mobilization.

I have a friendly amendment to Saul and Gerry's wonderfully told and critically important story. They have described constitutional partisanship without political parties. This is partly because, (as Gerry has argued in his earlier work), the book ends before the Second Party System really got started. After the jump, two friendly amendments to their account, explaining how parties solve two constitutional challenges for the "white yeomanry" that ruled the roost in 1832: (1) the challenge of providing an alternative to distributive politics of universal log-rolls and (2) the challenge of a new evangelical opposition to Van Buren's party of propertied white men that arose between 1826 and the Cherokee Case. The critical take-away: The most effective antebellum constitutional advocates were not courtroom lawyers but politicians like Aaron Burr and Martin Van Buren who knew how to get out the vote.

Using the Diploma Privilege to Reflect on What We Do and What We Ought to Do

I suspect most readers would agree that the ABA Journal gets worse every year, perhaps understandably. (It costs money to put out a good journal, among other things. And the market for eyeballs has gotten fiercer.) But I thought this article, which I found via Paul Caron's blog, was pretty good. There has been a good deal of both sincere and strategic invocation of Wisconsin's diploma privilege of late as we look to alternatives to the bar exam in the short and long term. But those invocations are often heavier on citation than on detail. This article quotes Wisconsin lawyers and educators on why they think the diploma privilege works in their state. It could do more still, but it's a good start. (Its author, Stephanie Francis Ward, deserves credit by name.) In doing so, it reflects, and allows reflection, on what lawyers need and on what is needed to train them--and, by contrast, on what we actually do to train them.

On the first point, the lawyers quoted emphasize a few points: 1) the lawyers they see who get into trouble are not necessarily young, but what one might call early-mid-career, some 10-15 years into practice; 2) their troubles stem less from incompetence than from dishonesty and poor judgment; 3) specifically, according to the director of Wisconsin's Office of Lawyer Regulation, the causes are "a poor or nonexistent mentor; anxiety, depression and chemical dependency; inadequate organizational skills; character issues; and a lack of business acumen."

For practicing lawyers and for those who teach legal ethics and thus encounter discussions of the subject, at least, much of this won't be terribly surprising, although it's useful to see it nicely packaged. It is possible that the 10-15 year point has to do with the size and nature of the cases one gets, with the germination and worsening of substance abuse or other personal problems over time, or with emerging from under the supervision and care of a mentor and from working in a team to working alone or as a team leader. But it also invites more general thoughts about the life-cycle of professional practice, or indeed of work in many fields, and of the strengths and weaknesses of each period of one's professional life, in one's inexorable journey from energy and callowness, to skill and hubris, to wisdom and senescence.

The emphasis on things other than legal knowledge is noteworthy. Do we stress honesty, integrity, and virtue enough in legal education? In life in general? I doubt it, in part because I doubt one can ever stress it enough. Certainly I stress character and honesty when I teach legal ethics, and add grace notes about it in all my classes. But I could do more. There is a tendency in legal education either to stress technical acumen more than character and virtue, or to confuse the teaching of social justice, or right thinking, or just policies, outcomes, and theories, with the teaching of good character, and to think one has accomplished the second task if one has emphasized the first set of ideas. Of course they are not the same. One can be a person with fine ideals and a lousy character, or commendable in one's goals but lousy in one's tactics, or possessed of a decent set of views on personal character but withal weak or untrustworthy.

I also find the emphasis on organizational skills useful--and painful. Those who teach legal ethics or are in practice know that the most common causes of disciplinary complaints involve neglect of cases and failure to communicate with clients, as well as complaints about fees and more serious problems such as poor management of funds or fraudulent activity. Most of these involve organizational issues and many of them could have been prevented relatively easily.

I emphasize things like returning calls when I teach legal ethics in part because (and here's the painful element) my organizational skills are much poorer than they should be. People who harbor ambition or simply want to be well thought of don't like to confess such things out loud; I certainly don't. But my inbox is too long, I have too many unanswered emails or phone calls, I sometimes delay the painful duty in favor of the easy activity (like blogging), and I don't make the best use of my RAs or my assistant. I am not alone in this, surely, but that doesn't make the realization much less painful. When I reflect on what I did poorly in practice and still haunts me, I remember the failure to stay properly in touch with a particular client. Had I remained in practice, I suspect that organizational issues, not legal acumen or larger character issues of honesty and integrity, would have been my worst problems. Perhaps I would have overcome them and perhaps not. Like most people, law professors tend to focus on what they are good at and assume these are the most important skills or qualities to have. Thus they are perhaps more inclined than they should be to assume that legal acumen and raw intelligence are the key to professional success--and, accordingly, that they would have been successful lawyers had they stayed in practice for the long haul. Surely these are requisite skills and no doubt they are some lawyers' Achilles' heels. But even if they're necessary, they're not sufficient, nor are they the cause of most client complaints.

Do we teach these qualities? Can we? Is law school set up to teach them, or does it do so only incidentally, such as by cramming several exams into a short period? No doubt many of us grant extensions on papers and such fairly generously, thinking that the quality of mercy is not strained, and perhaps that extensions happen often in practice. But perhaps we should be stricter and more Draconian about such matters in law teaching: insisting in practice and not just in theory on excellent attendance and marking students absent for lateness, refusing to grant extensions short of truly dire circumstances, setting hard deadlines for intermediate steps in the paper-writing process and marking students down for failing to meet them, and so on. Better organizational training would entail greater administrative costs for law professors and might hurt their teaching evaluations or lower their course enrollments. It might have a disproportionate impact on some students. The proper answer to these concerns might well be, tant pis. Better that we bear the brunt than that clients do, or that some students suffer now rather than having both them and their clients suffer later.

Some of us, in writing about why the Wisconsin diploma privilege cannot be loosely invoked or suddenly applied to all schools in all states, have emphasized its insistence on a set curriculum that takes up a great deal of law school. It's thus interesting that the lawyers and educators quoted in the story don't emphasize this in particular, although perhaps other Wisconsin lawyers and law teachers might. What they do emphasize is captured in a nice quote from Gordon Smith, a former Wisconsin prof who is now dean at BYU:

"Law schools aren’t set up to be the gatekeepers to the profession in the same way they might be if they really were the gatekeepers. I suspect that those of us who taught at Wisconsin or Marquette recognize that there’s a special obligation to ensure that the students who graduate are competent to practice law. We’re the last stop, other than character and fitness."

Again, this is useful for thinking about what is needed to train lawyers, especially in the absence of a bar exam, and about what we actually do or should be doing. It does not contradict a modern emphasis on things like wellness, student happiness, thinking of students as consumers (or students thinking of themselves as consumers), making legal education available to as many students as possible, or legal education as a good in itself. But it may be in some tension with it, or at least suggests that these things are not ends in themselves but should be thought of in terms of how best to do the job of gatekeeping. Treating students well, compassionately, and as human beings does not, for example, mean that we shouldn't flunk them if they do poorly. Providing more resources for learning how to write instead of assuming students already have those skills, and spending time patiently teaching them those skills, doesn't require that one pass a student who still can't write competently (at the least; why not insist that in order to pass, they be able to write well?) at the end of that process. (The same is true of requiring mathematical skills for law students, something we don't really insist on at all even if we should.)

By and large, it seems to me that most of our gatekeeping happens at the front end. At many schools, the "gateway" schools or degree mills excepted, it's hard to get in but not so hard to graduate. (For that matter, at virtually all law schools it's very hard to get a job as a professor but the tenure rate is very high--higher than in other fields. We emphasize uniform high standards along specific dimensions, not experimentation and pluralism in hiring with more error correction at the tenure stage. At that, teaching and service are less important than scholarship for tenure, and even then the demands are not terribly great. I'm not sure whether these similarities are related or not. I suspect the latter at least affects the former.)

There are plausible justifications for this. But those justifications are also subject to the normal tendency to be influenced by self-interest or institutional need. It is true that one can do other things with a law degree besides practice law, or gain some value from a one-year certificate in, say, legal compliance--and it is also true that both justifications have the benefit of putting students in seats and money in the bank. We are more rigorous in selection (in substantial part for ranking-related reasons) than in evaluation and weeding out. We are more concerned with basic performance than with competence to practice law or character and fitness. Our grading curves have more to do with ranking than with culling, and we mostly test for things that are more measurable, and easier and cheaper to administer enmasse, than testing for genuine competence to practice law--which, again, we can justify on the basis that practicing law is not the only function of a legal education. Most of the harder and more unpleasant tasks we slough off onto the bar, sometimes with the justification that it's not our job or not our skill set, or that if law schools turfed students based on fitness and character concerns they would be more intrusive and perhaps more arbitrary or discriminatory.

Certainly a focus on acting as strenuous gatekeepers, at least in terms of competence to practice and perhaps also in terms of character and fitness, would require a change in who we hire (look at all the Ph.D's in this year's hiring report), how we teach, how large our classes are, how we evaluate, and how much we spend, individually and institutionally, in terms of time and resources. It would make us less profitable and perhaps more disliked by students. And it would emphasize our function as a professional training institution, not an academic and scholarly field, and thus push us further away from the century-long dream of being thought of as a genuine academic discipline, more like a history department than a beauticians' school.

I offer no strong conclusions. My goal is simply to suggest that the article provides food for thought about what the Wisconsin lawyers and educators think works about their setup and why, and thus about what law schools in general ought to be doing--and what they are actually doing. I can't help but note a certain irony or tension in the current circumstances, in which we are both urging something like an emergency diploma privilege approach and have chosen to adopt pass-fail grading for the semester--with, I am guessing, an assumption or instruction on the part of most schools and professors that few if any students should actually be given a failing grade. We are thus simultaneously using the gatekeeper approach to justify current emergency measures and moving even further away from actually acting as gatekeepers. I'm not criticizing this, or not overmuch. We deal with sudden circumstances as best we can. And much of the movement quickly turned in the direction of supervised rather than unrestricted practice. (Although, on this point, it's worth noting the Wisconsin lawyer regulation official's quote identifying a "poor or nonexistent mentor" as a leading cause of disciplinary trouble. A proper system of supervised practice demands that we give thought to what sound supervision actually requires and impose meaningful and costly demands on both the supervised and the supervisor.)

But in thinking about longer-term models, we ought to think about what we need to be doing and how it differs from what we do currently. We ought to understand the role of things like compassion more precisely, as a way of dealing with people and their problems and getting the most and best out of them, and not mistake it for the absence of high standards or an unwillingness to make hard and painful decisions--including the decision that someone doesn't belong in law school or in practice. We should avoid the temptation of wanting to be liked, or likable, or popular, especially by leaving the unpopular jobs for someone else: bar examiners, or character and fitness committees, or disciplinary bodies. We shouldn't necessarily keep the features we have now--cheap exam methods, light tenure standards, high graduation rates, large classes, multiplying non-degree programs, aping other academic departments, or what have you. We certainly shouldn't retain them simply because we like them, or because they make us feel like academics and not professional trainers, or because they will ensure that fewer schools go out of business, even if there are independent and plausible justifications for those features. This seems like an excellent time to reflect on what we do and what we should do, and to think about ways we can make life more demanding and less pleasant for law professors and law schools, and perhaps even for law students.

Courts should not reach out, unless they need to reach out

SCOTUS reached a strange resolution in United States v. Sineneng-Smith, arising from a conviction of an attorney for violating the federal law prohibiting encouraging or inducing non-U.S. persons to enter or remain in the U.S.

The Court vacated and remanded to the Ninth Circuit on grounds of the "principle of party presentation"--that courts must take and resolve cases as they come and are presented by parties represented by competent counsel--and that courts are "passive instruments of government."* And while there are exceptions (as shown in a two-page addendum** in which SCOTUS has appointed amicus or called for further briefing since 2015), the Ninth Circuit went beyond the pale in its management and resolution of the case, was unjustifed by any "extraordinary circumstances." The Court took issue with the court of appeals inviting specific amicus to brief and argue specific constitutional that were broader than what Sineneng's attorney had argued--that the law was overbroad and facially unconstitutional, as opposed to the defendant's arguments that she had a limited First Amendment immunity for her conduct. [I did not say it in the initial post, but I will say it now--the Court did not explain why what the Ninth Circuit did was more beyond the pail than what it does frequently].

[*] The partisan bend of that idea is fascinating, given the make-up of the federal courts and the evolving nature of constitutional and impact litigation.

[**] Any guesses as to why this was an addendum and not part of the opinion?

Justice Thomas concurred, but took the time (reached out, one might say) to explain why the overbreadth doctrine was invalid and should be rejected as unwarranted by text and history, inconsistent with the usual standards for facial challenges, and another improper application of the improper doctrine of third-party standing. He cites his dissent on third-party standing in Whole Women's Health and restates his distaste for this "handiwork of judges, based on the misguided 'notion that some constitutional rights demand preferential treatment.'" Query whether this hints at where the Court might be going on the standing questions in the Louisiana abortion cases.